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Appeal (civil) 5809 of 2000
M. Vishweshwara Shastry
M. Gopalakrishna Bhat & Ors
DATE OF JUDGMENT: 07/03/2007
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
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
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
"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
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.