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CASE NO.: Appeal (civil)  5809 of 2000

PETITIONER: M. Vishweshwara Shastry

RESPONDENT: M. Gopalakrishna Bhat & Ors

DATE OF JUDGMENT: 07/03/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

        Appellant calls in question legality of the order passed by  a learned Single Judge of the Karnataka High Court,  dismissing the application filed by the appellant for extension  of time to comply with the earlier order dated 25.6.1999.  

       A brief reference to the factual aspects would suffice:

       Appellant filed Misc. First appeal under Order XLIII Rule  1(r )  of the Code of Civil Procedure, 1908 (in short the ’Code’)  against order dated 30.5.1997 passed by the learned Civil  Judge Puttur (D.K.) dismissing petition filed under Order IX  Rule 13 read with Order XVII Rule 2 of the Code for  restoration of the suit which had been decreed ex-parte.  Appellant was defendant No. 5 in the suit.  

By order dated 25.6.1999 the learned Single Judge  allowed the appeal, inter-alia, with the following directions:

"In the result, the appeal is allowed on  payment of cost of Rs.1,000/-.  The impugned  order is set aside.  The appellant is directed to  file the written statement within 2 weeks from  the date of this order and the trial court shall  dispose of the suit within 3 months from the  date of receipt of this order, after framing  necessary issues."               

       It is the case of the appellant that his advocate on  30.6.1999 wrongly informed him that the written statement  was to be filed within two months and the cost was to be paid  within the said time.  The written statement was tendered on  2.8.1999 and cost was offered to the learned counsel for the  plaintiffs.  The said learned counsel refused to accept the  amount on the ground that the same was offered after the due  date. Appellant filed a memo before the Civil Judge for  accepting the deposit. However, the learned Civil Judge called  for the records of the original suit no. 17/1995 and directed  that the deposit can be made only after receipt of the records.

       On going through the certified copies, the appellant  noticed that actual time granted was two weeks and not two  months. He, therefore, made an application before the High  Court to extend the time. The same has been rejected by the

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following order:                         OFFICE NOTE "I.A. II for extension of time          Advocate for appellant has filed an I.A. and  affidavit praying to extend the time set for  filing of the written statement and payment of  cost by 2 months for the reasons stated in the  I.A.  Post I.A II for orders before S.J.

       Orders of Court

       Heard. IA 2 is dismissed."       

       Learned counsel for the appellant submitted that  because of the bona fide mistake the directions of the High  Court could not be complied with and the fact that the written  statement was tendered and the cost offered within two  months proves the bona fides.  The High Court without  indicating any reason has dismissed the application.

       There is no appearance on behalf of the respondents in  spite of service of notice.

       We find that the appellant had indicated sufficient  reasons as to why there was non- compliance with the order of  the High Court.  The bona fides have been spelt out in detail  and, in fact, there was no reply denying  the averments made  by the plaintiff who was the opposite party no. 1 in the  application.   

       That being so, the High Court was not justified in  summarily rejecting the application.  Therefore, we set aside  the order of the High Court.  Let the written statement be filed  within four weeks from today, if not already filed on record of  the trial court.  The costs shall be paid within the aforesaid  time. If the aforesaid conditions are fulfilled the order dated  25.6.1999 in MFA No. 2323 of 1997 shall be treated to be   operative.    

       The appeal is allowed with no order as to  costs.