Gross negligence and indifference in prosecuting the appeal, and failure to satisfactorily explain the delay in filing the miscellaneous petition.

( 1 ) THE petitioners being aggrieved by the order dated 10th March, 2006 in Civil Misc. 35/2005 on the file of the and additional District Judge, Bijapur, have presented the instant revision-petition.

( 2 ) THE respondents herein had filed a suit in O. S. No. 192/1995 for partition and separate possession claiming that, they are the sisters of one Nabisab. The said suit came to be decreed. They being aggrieved by the same, petitioners herein have filed the Regular Appeal in R. A. No. 13/1998 and the said appeal has been dismissed against the second respondent on the ground that, steps were not taken and the matter was posted for arguments. Thereafter, the matter had come up for consideration on 27th January, 2004. Since the appellants were absent, the appeal was dismissed for default. Assailing the correctness of the said order passed in R. A. No. 13/1998 on 27th January, 2004. petitioners herein have filed Civil Misc. No. 35/2005. Along with the said civil miscellaneous petition, the petitioners have also filed IA. II for condonation of delay in filing the miscellaneous petition. The said application filed by the petitioners had come up for consideration before the Ilnd additional District Judge, Bijapur dated 10th march. 2006 and the Court below after hearing both sides and after considering the relevant material available on file, on the basis of the pleadings of both parties, framed necessary issues for consideration. LA. II filed in civil Misc. 35/2005 under O. 41. R. 19 read with S. 151 of Code of Civil Procedure was rejected and consequently the miscellaneous petition filed also stood dismissed on the ground that, there is delay of one year and nine months and the same is neither reasonable nor satisfactory. Assai ling the correctness of the impugned order passed by the learned ilnd Additional District Judge, Bijapur, as referred above, petitioners herein felt necessitated to present the instant revision-petition.

( 3 ) LEARNED senior counsel appearing for petitioners, vehemently submitted that, the court below has committed a grave error and illegality in not considering the case made out for setting aside the order passed by the Court below dated 27th January, 2004 in R. A. No. 13/1998 which was dismissed for default. He submitted that. P. W. 1 Nabilal has categorically stated that, neither the counsel for the petitioners nor the learned counsel for respondents has informed them about the dismissal of the regular appeal. The Court below, except referring the evidence of the parties in its order at internal page 8, has not considered nor given any specific finding. He further submitted that, when it is the specific case of the petitioners before the Court below that, the counsel who represented the petitioners in regular appeal has not intimated the dismissal of the appeal for non-prosecution on 27th January, 2004 and that, they came to know of the same only when they received the notice in final decree proceedings, the court below ought to have considered the same and allowed the application. He submitted that, due to communication gap between the learned counsel for petitioners and the petitioners and the lapses on the part of learned counsel for petitioners in not intimating the result or" the appeal, the valuable rights of the petitioners cannot be deprived and, therefore, he submitted that, the impugned order passed by the Court below is liable to be set aside. Further, he has taken me through the reliance placed by the Courts below on the judgment of this Court in the case of Smt. Lakkavva shrimant Holkar v. Vittappa, reported in ILR 2003 Kair 584 : (2003 AIR Kant HCR 99) and pointed out that, the same is not applicable to the facts of the present case. The trial Court placing reliance on the aforesaid judgment has not considered the specific case made out by petitioners and rejected the application filed for condonation of delay. Therefore, he submitted the impugned order passed by the Court below is liable t

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