SUPREME COURT OF INDIA

Before:- S.P. Bharucha and Ruma Pal, JJ.

Civil Appeal No. 4160 of 2000 [Arising out of SLP (C) No. 9878/1988]. D/d. 21.7.2000.

M/s. Esbee Inds. Corpn. - Appellant

Versus

M/s. Bulk Systems Int. Ltd. - Respondent

Civil Procedure Code, 1908, Section 100 - Second appeal - Delay of 161 days - Application for condonation of delay not accepted by High Court because except for pleading forgetfulness, no other ground was made out - High Court should have condoned the delay - Application for condonation of delay allowed - Appeal restored to the file of the High Court to be heard and disposed of on merits.

[Paras 3 and 4]

ORDER

1. Leave granted.

2. The notice on the SLP stated that the matter might be disposed of at this stage by an order remitting the second appeal to the High Court, after condoning the delay in filing it.

3. The order of the High Court that is under challenge stated that the second appeal before it was out of time by 161 days and that the application for condonation of delay was not acceptable because except for pleading forgetfulness, no other ground was made out. We have heard learned Counsel and examined the pleadings. We are of the view that, in any event, the delay of 161 days ought to have been condoned and, if the High Court was of the opinion that costs were required to be imposed, that order could also have been passed. We think that, in these circumstances, the delay should be condoned and the appeal restored to the file of the High Court to be heard and disposed of on merits.

4. The appeal is allowed. The order under challenge is set aside. The application for condonation of delay is allowed. The appeal (O.S.A. No. 14/97) is restored to the file of the High Court to be heard and disposed of on merits.

5. No order as to costs.

.