M. Vishweshwara Shastry v. M. Gopalakrishna Bhat and Ors.

Case Details & Bench

Court: High Court
Hon'ble Judges: Dr. Arijit Pasayat, J.
Lokeswar Singh Pant, J.
Judgment Date: 2007-03-07
Court Decision / Holding: The appeal is allowed. The High Court’s order is set aside. The written statement is directed to be filed within four weeks from today, with costs paid within the same period. If these conditions are fulfilled, the order dated 25.6.1999 in MFA No. 2323 of 1997 shall be treated as operative. The appellant’s claim of bona fide mistake is accepted and the matter remitted for proper disposal.
Final Disposition: Appeal allowed.

Parties to the Case

Appellants / Petitioners

M. Vishweshwara Shastry

Respondents

M. Gopalakrishna Bhat and others

Legal Representation & Advocates

Counsels for Petitioners

• S.N. Bhat

Case Synopsis & Summary

This Civil Appeal arises from a Karnataka High Court order refusing to extend time for filing the written statement in a suit decreed ex parte. The appellant, defendant No.5 in the suit, challenged the High Court’s dismissal of his application for extension of time. The trial court had decreed the suit ex parte; the appellant filed a miscellaneous first appeal under Order XIII, Rule 1(r) of the CPC. By an order dated 25.6.1999, the learned Single Judge of the High Court allowed the appeal, inter alia, with a direction to file the written statement within two weeks from the date of the order and to dispose of the suit within three months from receipt of the order, while fixing costs. The appellant claimed that his advocate misinformed him; the directive granted was two weeks, not two months, for filing the written statement. The written statement was tendered on 2.8.1999 along with an offer of costs, which was refused by the plaintiffs’ counsel. On verifying the certified copies, the appellant discovered the correct period was two weeks. He moved the High Court for extension of time; the application, IA II, was dismissed summarily. The Supreme Court held that the appellant had shown bona fide reasons and that the High Court erred in summarily rejecting the application. It set aside the High Court’s order and directed the written statement to be filed within four weeks, with costs paid within the same period; if complied, the 25.6.1999 order would be operative. The appeal was allowed with no order as to costs. The decision emphasizes that bona fide mistakes by counsel or party, when properly supported, deserve equitable consideration and that a strict, mechanical denial of extension of time should be avoided.

Provisions of Law Cited

Order XIII, Rule 1(r) of the CPC, 1908 (Misc. First Appeal)Order IX, Rule 13 read with Order XVII, Rule 2 of the CPC, 1908Order XIII? (Misc. First Appeal)Order XLIII, Rule 1(r) of the CPC, 1908

Legal Doctrines & Maxims

Bona fide (principle of genuineness)
Bona fide mistake (bona fides)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that due to a bona fide mistake of counsel, the time prescribed by the High Court was misread; the written statement was tendered within the corrected two-week period and costs offered, which was not accepted; since the mistake was genuine and not contested by the opposite party, the extension of time should be granted and the High Court’s summary dismissal should be set aside.

Contentions of Respondents

No appearance was recorded for respondents; the respondents’ counsel did not advance arguments before the Supreme Court in this phase, and the respondents contended via record that the extension should be denied if there was non-compliance with the High Court’s order.

Extracted Judgment Text

Exact text extracted from official judgment records.

## M. VISHWESHWARA SHASTRY _v._ ## M. GOPALAKRISHNA BHAT AND ORS. MARCH 7, 2007 ~ •[t:' ] [DR. ARJJIT PASA YAT AND LOKESHWAR SINGH PANT A, JJ.] _Pleadings -Written Statement-Direction for filing within specific timeDelayed 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. --~ 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. H 629 630 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, inter-alia, with the following directions: E "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. 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: ,. ,. - H 631 M. VISHWESHWARASl-IASTRY 1·. M. GOPALAKRISHNA BHAT[PASAYAT,J] A _r_ ## _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 B orders before S.J. -I J. ~ ## _Orders of Court_ Heard. IA 2 is dismissed." 7. Learned counsel for the appellant submitted that because of the bona c 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. 8. There is no appearance on behalf of the respondents in spite of[D ] service of notice. 9. 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 tides have been spelt out in detail and, in fact, there was no reply denying the E averments made by the plaintiff who was the opposite party no. I in the application. ~ IO. 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 F 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. 11. The appeal is allowed with no order as to costs. G K.K.T. Appeal allowed.