1. Suit for specific performance of contract filed by appellant herein, was dismissed by learned Civil Judge (Junior division), Gurgaon vide judgment dated 30-5-2005. While filing an appeal against the same, the appellant did not pay the requisite Court-fee and, instead, mentioned in para 9 of the memorandum of appeal that he be granted time for paying the Court-fee on the ground that his son was patient of cancer and was under treatment on which he had spent a huge amount. He did not file any separate application under Sec.148 of the Code of Civil Procedure (for short the code) for enlargement of time for paying the court fee or under Sec.149 of the Code to make up the deficiency of Court-fee. He remained contented with having made specific mention in para 9 of the memorandum of appeal so as to seek the grant of time for doing the same. However, it was reported by Superintendent of first appellate Court that the Court-fee was correct. The appeal was, accordingly, admitted on 2-8-2005. On 11-8-2006, it was brought to the notice of lower appellate Court for the first time when the said Court insisted for advancing arguments that proper Court-fee had not been affixed. At that stage, learned counsel for the appellant requested for time for affixing court-fee, while learned counsel for respondent No.2 objected to it on the ground that the appeal had become time barred.

2. Learned lower appellate Court did not grant the permission to the appellant to make up the deficiency of Court-fee and proceeded to reject the appeal on that ground alone vide its impugned judgment dated 17-8-2006. Aggrieved of the same, the appellant filed the present second appeal in this court under Sec.100 of the Code.

3. After issuance of notice of motion, only respondent No.2 put in appearance through his counsel for opposing the appeal. Respondent No.1 had been served but no one put in appearance on her behalf. Even before the learned lower appellate Court, it was respondent No.2, who had objected to appeal on the ground of having been filed without affixing the Court fee, whereas respondent no.1 was proceeded ex parte.

4. From the arguments raised by learned counsel for the parties, I find that the following substantial questions of law arise for determination :-

1. Whether the learned first appellate court should have granted time for making up the deficiency of Court fee? 2. Whether the appeal could be dismissed on a technical ground that formal application under Sec.148 C. P. C. or under section 149 C. P. C. had not been filed and the plea for grant of time was raised by the appellant only in the grounds of appeal? 3. Whether the respondents have a right to object for the extension of time in making the deficiency in Court fee which is a matter between the State, i. e. Revenue and the appellant?

5 The law requires affixing of appropriate Court-fee, while filing appeal by the person aggrieved of the judgment and decree of the Court below. In the event of his not affixing the Court fee within the period prescribed for filing the appeal, he is required to file an application under Sec.148 of the Code to apply for enlargement of the period. Such a period could also be enlarged even when the period, originally fixed or granted, may have expired. Further, the court may, in its discretion, enlarge the period from time to time, not exceeding 30 days in total. Even if no such Court fee has been paid, the Court has discretion under Sec.149 of the Code, to allow any person by whom such Court-fee is payable and at any stage, to pay the whole or part of such Court-fee. Once such a Court fee is paid by the person after having been allowed by the court, it has the same force and effect as if such fee had been paid in the first instance.

6. Admittedly, no such application, either under Sec.148 or under Sec.149 of the Code, was filed by the appellant before the first appellate Court. On the other hand, he remained under the impression that he had specifically p