The unsuccessful defendant filed this Regular Second Appeal against the judgment and decree dated 18.03.2013 made in R.A.No.78/2010 on the file of the II Addl. Senior Civil Judge, Mangalore, D.K., dismissing the appeal, confirming the order dated 07.06.2010 passed in Misc. Case No.5/2008 on the file of II Addl. Civil Judge, Mangalore, D.K., dismissing the Misc. petition filed under Order IX Rule 13 read with Section 151 of C.P.C.

2. The respondent, who is the plaintiff before the trial Court, filed the O.S.No.230/2006 against the appellant-defendant Daivasthana for a relief of declaration that the appellant-defendant has no right to trespass, encroach upon or interfere with the possession of the plaintiff in respect of the suit schedule property and also for permanent injunction restraining the appellant-defendant or anybody claiming under them from trespassing, encroaching upon or putting up any construction in the plaint schedule property and also direction to the defendant to remove the earth dumped on the plaint schedule property and to remove the concrete pillars under construction in the plaint schedule property, etc.

3. The present appellant-defendant, filed vakalath on 29.05.2006, but the written statement was not filed. In the meanwhile, defendant’s counsel, who was representing before the trial Court, had retired on 02.11.2006 without issuing notice to the present appellant about his retirement from the case and the trial Court without issuing Court notice to the party-defendant proceeded to decree the suit in part directing defendant and its Trustees headed by its President by way of mandatory injunction to remove the concrete pillars under construction over the plaint ‘A’ schedule property and also granted permanent injunction restraining the defendant, its Trustees or any one claiming under the said Trust from trespassing or interfering over the plaint schedule property or putting up any construction. The claim of the respondent-plaintiff for the relief of declaration has been dismissed.

4. Thereafter, the defendant, who is the present appellant, filed the Misc.Case No.5/2008 along with an application for condonation of delay seeking to setaside the exparte judgment and decree dated 04.01.2007 passed in O.S.No.230/2006 contending that after receipt of the summons from the Court, the defendant approached the advocate one Sri Arun Bangera, who filed vakalath on his behalf. As per the instructions of his advocate on 25.05.2006, the defendant went to his office and handed over the plaint with suit summons and instructed him to file the written statement. On the assurance of his Advocate Sri Arun Bangera, the defendant waited for the call from his counsel, so as to instruct and prepare the written statement, but the defendant-appellant has not received any call from his counsel. Thereafter, the defendant contacted his advocate through his mobile, on which he came to know that vakalath has been filed by Sri Arun Bangera with his junior Mr.Jaker Hussain on 29.05.2006. Thereafter, the defendant contacted his advocate on several occasions so as to give necessary information in order to prepare the written statement, but on the assurance of his advocate, he did not attend his office and kept quite and waited for the call from his advocate. In the first week of June 2006, the defendant went to his counsel to enquire about the case, but on the assurance of his counsel he went back and again in the month of January 2007, the defendant enquired about the stage of the case, on that day he came to know that the case was posted for judgment on 04.01.2007. It was further assured by his advocate that the judgment would be rendered in favour of the defendant-petitioner. It is further averred that the defendant heard the news from the locality of Daivsthana about decreeing of the suit. Immediately, thereafter, the defendant went to the office of his counsel and asked about the suit, then he came to know that the suit was decree