LexM. VISHWESHWARA SHASTRY versus M. GOPALAKRISHNA BHAT AND ORS.
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M. VISHWESHWARA SHASTRY
A
v.
M. GOPALAKRISHNA BHAT AND ORS.
MARCH 7, 2007
[DR. ARJJIT PASA YAT AND LOKESHWAR SINGH PANT A, JJ.]
B
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Pleadings -Written Statement-Direction for filing within specific time-
• t:'
Delayed filing-Due to bona fide mistake of the party-On realization of the
mistake application made to extend the time for filing-Rejection of c
application-On appeal, held: The party entitled to extended time for filing
since his bona fide proved-Code of Civil Procedure, 1908-0rder Vll/.
Civil Judge had dismissed the petition for restoration of the suit which
had been decreed ex-parte. First appeal thereagainst was allowed on payment
of cost, 'Vith direction to the appellant to file the Written Statement within 2 D
weeks. According to the appellant he was informed by his advocate that
Written Statement was to be filed within 2 months. Accordingly he filed the
Written Statement within 2 months and also offered the cost. The counsel
for the other party refused to accept the cost on the ground of delayed payment.
On going through the certified copies, appellant noticed that the time granted
by High Court was 2 weeks and not 2 months. Hence he moved the High Court E
seeking extension of time. The same was dismissed summarily. Hence the
present appeal.
Allowing the appeal, the Court
HELD: The appellant had indicated sufficient reasons as to why there F
was non-compliance with the order of the High Court. The bona tides 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. I in the application. That
being so, the High Court was not justified in summarily rejecting the
application. (Paras 9 and 10) (631-E-F(
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5809 of2000.
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From the Final impugned Order dated 24.11.1999 of the High Court of
Kamataka at Bangalore in I.A. No. 2/1999 in M.F.A. No. 2323/1997.
629
H
630
SUPREME COURT REPORTS
(2007] 3 S.C.R.
A
S.N. Bhat for the Appellant.
The Judgment of the Court was delivered by
DR. ARIJIT PASA YAT, J. I. Appellant calls in question legality of the
order passed by a learned Single Judge of the Karnataka High Court, dismissing
B the application filed by the appellant for extension of time to comply with the
earlier order dated 25.6.1999.
2. A brief reference to the factual aspects would suffice:
3. Appellant filed Misc. First appeal under Order XLlll Rule l(r) of the
C 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.
D
4. By order dated 25.6.1999 the learned Single Judge allowed the appeal,
E
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."
5. 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
F 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
G the deposit can be made only after receipt of the records.
H
6. 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
r~jected by the following order:
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M. VISHWESHWARASl-IASTRY 1·. M. GOPALAKRISHNA BHAT[PASAYAT,J]
631
r
OFFICE NOTE
A
"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
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