VISHWESHWARA DEVARU Vs. KISHAN

JUDGEMENT

(1.) HEARD the learned counsel for the petitioners.

(2.) GIVEN the circumstances of the case, notice to respondents is dispensed with and the matter is considered for final disposal, in the interest of justice

(3.) THE learned counsel for the petitioners would point out that the reasoning of the Appellate Court is erroneous. In that, the earlier application was filed before the Trial Court seeking extension of time beyond the period of 90 days as the petitioners were gathering material by recourse to Right to Information Act, 2005 and which was necessary for the pleadings. Since the material had not been obtained, they had sought extension of time. The same having been rejected, could not be considered as an application seeking permission to file the written statement. It is only now that the application was filed seeking condonation of delay and to file the written statement. Accordingly, since the Appellate Court had chose to call for the records of the Trial Court, the Appellate Court, in terms of Section 10 of the CPC was also empowered to perform such duties as cast on the Trial Court and ought to have considered the application in the light of the law laid down by the Hon'ble Supreme Court. In that, the time prescribed under Order 8 Rule 1 of the CPC is not mandatory and it is directory. Given the explanation offered by the petitioners, it was necessary for the Court below to consider the application on such terms as it deems fit. Rejection on erroneous terms would certainly cause miscarriage of justice and seeks this Court to correct the injustice caused.