Madras High Court
T.Arumugam vs N.Namperumal on 28 June, 2021
S.A.(MD)No.763 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.763 of 2012
T.Arumugam ... Appellant/Appellant/Plaintiff
-Vs-
N.Namperumal ... Respondent/Respondent/Defendant
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the Judgment and decree of the Principal District Judge,
Dindigul, dated 01.03.2010 in A.S.No.33 of 2008 confirming the Judgment
and decree passed by the Additional Sub Court, Dindigul, dated 02.06.2008
in O.S.No.86 of 2004.
For Appellant : Mr.S.Anand Chandrasekar
For Respondent : Mr.AL.Kannan
for Mr.D.Muruganantham
JUDGMENT
The plaintiff in O.S.No.86 of 2004 on the file of the Additional Sub
Court, Dindigul, is the appellant in this second appeal.
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S.A.(MD)No.763 of 2012
2.The appellant filed the said suit on the strength of Ex.A1-pro-note
dated 05.01.2001. According to the appellant, the defendant borrowed a
sum of Rs.1,50,000/- from him and executed the pro-note. The appellant
issued Ex.A2-suit notice dated 16.06.2003. Though the defendant received
the same as evidenced by the acknowledgment card-Ex.A3 dated
19.06.2003, the defendant did not reply. Hence, the suit was filed for
recovering a sum of Rs.1,76,925/- with interest. The defendant filed his
written statement denying the plaint averments. The defendant submitted
that he had dealings only with the son-in-law of the plaintiff. According to
the defendant, when he borrowed a sum of Rs.20,000/-, he signed in a
blank pro-note. He made a further claim that the said amount was returned.
But then, the signed blank pro-note was not given back to him. He also
claimed that after receiving the suit notice, he met the plaintiff in person
who assured that he would not pursue the matter.
3.The plaint was filed on 02.01.2004. There is no doubt that it was
filed within the limitation period. But then, the entire Court fee payable
was not paid. The trial Court had granted time to pay the deficit Court fee.
It appears that even within the extended time, the Court fee was not paid.
Thereafter, an application was filed for condoning the delay in paying the
deficit Court fee. It appears that no formal order was passed on the said
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S.A.(MD)No.763 of 2012
application. But the suit was numbered and taken on file on 24.03.2004.
The trial Court had originally dismissed the suit only on the ground of
limitation. The same was challenged by the plaintiff in appeal. The first
Appellate Court had remanded the matter by directing the trial Court to
answer all the issues. The first Appellate Court noted that the application
for condoning the delay in paying the deficit Court fee was not numbered.
The trial Court was directed to number the said IA and thereafter, answer
the issue regarding limitation. The trial Court was called upon to answer
the other issues also. Post remand, the trial Court dismissed the application
for condonation of delay in paying the deficit Court fee for two reasons:-
(a) The petition was supported by an affidavit sworn to by the
advocate-clerk and not by the party concerned.
(b) No specific petition under Section 149 of C.P.C., was filed.
The suit came to be dismissed by Judgment and decree dated 02.06.2008.
Questioning the same, the plaintiff filed A.S.No.33 of 2008 before the
Principal District Court, Dindigul. By the impugned Judgment and decree
dated 01.03.2010, the first appellate court dismissed the appeal.
Challenging the same, this second appeal came to be filed.
4.The second appeal was admitted on the following substantial
question of law:-
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S.A.(MD)No.763 of 2012
“Whether the dismissal of the suit on the ground of limitation is
legally sustainable?”
5.Heard the learned counsel on either side.
6.As rightly pointed out by the learned counsel appearing for the
appellant, the substantial question of law arising for consideration in this
second appeal is no longer res integra in view of the following decisions:-
“2009 (6) CTC 92 (Mahalingam Vs. K.Krishnasamy
Naidu)
1926 (51) MLJ 90 (Kolisetti Basavayya and others Vs.
Mittapalli Venkatappayya and another)
1994 AIR KERALA 405 (V.O.Devassy Vs. Periyar
Credits)
2016 (4) CTC 880 (K.Dhanavelu Vs. K.S.M.Venugopal)
2003-3-L.W.803 (K.Natarajan Vs. P.K.Rajasekaran)
2015 (5) CTC 865 (V.P.Venkatachalam Vs.
N.Venkatachalam)”
7.A mere look at the aforesaid decisions would yield the proposition
that the Court has the power to permit the plaintiff to make up deficiency of
Court fee. Even if the plaintiff fails to do so within the time granted, still
the time-limit can subsequently be extended. It is not necessary that formal
order should be passed indicating such enlargement of time. The
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S.A.(MD)No.763 of 2012
numbering of the suit and taking the matter on file would indicate that the
said power should be deemed to have been exercised. This is a matter that
is between the Court and the plaintiff and there is no necessity to issue
notice to the defendant. In the case on hand, by 24.03.2004, the entire
Court fee has been paid. Though an application had been filed under
Section 151 of C.P.C., without numbering the interlocutory application or
passing formal orders thereon, the trial Court had numbered the suit. That
indicates that the request for enlargement of time earlier granted under
Section 149 of C.P.C., had been accepted in the first instance by the trial
Court. There was no need for going back on the exercise of such discretion
by the successor-in-office. Therefore, I hold that the Courts below went
completely wrong in coming to the conclusion that the suit was time-barred.
The substantial question of law is answered in favour of the appellant and
the impugned Judgment and decree passed by the first Appellate Court is
set aside.
8.The learned counsel appearing for the appellant would submit that
on the merits of the matter, the execution of the pro-note had been admitted
by the defendant. The defendant had also not responded to the suit notice-
Ex.A2. The trial Court had found the issues in favour of the plaintiff in this
regard. The defendant did not file any cross-objection assailing the
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S.A.(MD)No.763 of 2012
correctness of those findings. Therefore, he called upon this Court to allow
this second appeal and decree the suit as prayed for.
9.I am not able to agree with this contention urged by the learned
counsel for the appellant. The first appeal is a continuation of the original
proceedings. The first Appellate Court is obliged to re-appreciate the entire
factual matrix. In the case on hand, the first Appellate Court after choosing
to sustain the findings of the trial Court in the matter of limitation, had not
dealt with the other issues. In fact, rightly so. Limitation is a threshold bar.
If on that issue, finding is given in favour of the defendant, there is no need
to travel into the merits of the matter. As I have held the issue of limitation
in favour of the plaintiff, the matter has to be remanded to the file of the
first Appellate Court. The first Appellate Court will deal with the merits of
the matter alone as limitation has already been answered in favour of the
plaintiff.
10.In this view of the matter, even while allowing the second appeal,
the matter is remitted to the file of the first Appellate Court to dispose of
A.S.No.23 of 2008 on merits and in accordance with law. The first
Appellate Court shall deal only with the other issues. The first Appellate
Court shall issue fresh notice to the respondent. The Court fee paid by the
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S.A.(MD)No.763 of 2012
appellant shall be refunded to the appellant. The second appeal is allowed
accordingly. No costs.
28.06.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Principal District Judge, Dindigul.
2.The Additional Sub Judge, Dindigul.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.763 of 2012
G.R.SWAMINATHAN, J.
rmi
Judgment made in
S.A.(MD)No.763 of 2012
28.06.2021
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