Karnataka High Court
Sri Mathranda M Kishore vs Mathranda C Uthappa @ Vitala on 14 July, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 7448 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 7448 OF 2020 (GM-CPC)
BETWEEN:
1. SRI MATHRANDA M KISHORE
S/O M M MUTHAPPA
AGED ABOUT 34 YEARS
2. M M MUTHAPPA
S/O LATE MEDAPPA
AGED ABOUT 63 YEARS.
BOTH ARE R/AT. BEGOOR VILLAGE AND POST
HUDIKERI HOBLI, VIRAJPET TALUK
KODAGU.
3. M K KABRIDAS
S/O LATE KUSHALAPPA
AGED ABOUT 45 YEARS
R/AT KRISHNA COLONY
PONNAMPET TOWN AND POST,
Digitally VIRAJPET TALUK, KODAGU
signed by
VANDANA S ...PETITIONERS
Location:
High Court (BY SMT. SAMASHRITHA.R. FOR
of Karnataka SRI. NARENDRA D V GOWDA.,ADVOCATES)
AND:
1. MATHRANDA C UTHAPPA @ VITALA
S/O LATE CHENGAPPA
AGED ABOUT 71 YEARS
2. M C KALAIAH @ ARASU
S/O LATE CHENGAPPA
AGED ABOUT 73 YEARS
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WP No. 7448 of 2020
3. M S SUNITHA
W/O LATE SHARANU
AGED ABOUT 58 YEARS
4. M S VISHAL
S/O LATE SHARANU
AGED ABOUT 22 YEARS
5. M S VIVEK
S/O LATE SHARANU
AGED ABOUT 21 YEARS
ALL ARE R/AT BEGOOR VILLAGE AND POST
HUDIKERE HOBLI, VIRAJPET TALUK
KODAGU.
...RESPONDENTS
THIS W.P IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INIDIA PRAYING TO QUASH THE ORDER
DATED 21.09.2019 MADE ON I.A.NO.I AND II FILED UNDER ORDER
VIII RULE 1 AND R/W RULE 10 OF CPC IN O.S.NO.157/2016 ON THE
FILE OF SENIOR CIVIL JUDGE AND JMFC, VIRAJPET VIDE
ANNEXURE-E.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition by the plaintiffs in O.S.No.157/2016 is directed against the impugned order dated 21.09.2019 passed by the Senior Civil Judge and JMFC, Virajpet (for short "the Trial Court"), whereby the applications, I.A.Nos.1 and 2 filed by defendant Nos.1, 2, 7 to 9 for permission to file written statement, counter claim and adoption memo were allowed by the Trial Court.
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2. Heard learned counsel for the petitioners and learned counsel for the respondents and perused the material on record.
3. The material on record discloses that the petitioners-
plaintiffs instituted the aforesaid suit against the respondents-
defendants for partition and separate possession of their alleged share in the suit schedule immovable properties. In the said suit, defendant Nos.1, 2 and 7 to 9 filed the instant applications, I.A.Nos.1 and 2 under Order VIII Rule 1 r/w. Rule 10 CPC for permission to file written statement, counter claim, adoption memo etc., beyond the stipulated prescribed period. The said applications having been opposed by the plaintiffs, the Trial Court proceeded to pass the impugned order allowing I.A.Nos.1 and 2 by holding as under:
" ORDER The defendants No. 1, 2 and 7 to 9 have filed these applications seeking permission to file the written statement by condoning the delay.
2. In the affidavit annexed to the applications the defendants No. 1 and 2 have sworn to the effect that, in order to prepare their written statement certain vital documents were to be secured. In order to secure those documents time was consumed. Hence they could not file their written statement within time. In the suit property rights -4- NC: 2023:KHC:24698 WP No. 7448 of 2020 are involved. In case written statements are not taken on record they will be prejudiced. Hence, prayed to allow the applications.
3. These applications are opposed by the plaintiffs by filing separate detailed objection statements wherein the plaintiffs have denied the entire contention of the defendants and contended that law prohibits filing of written statements after 90 days from the date of service of suit summons. The applications are silent about details of long delay of more than one year. The reasons urged in the affidavit are false and concocted. The reasons stated in the affidavits can not be considered for condoning a long unexplained delay. The applications are contrary to the provisions of CPC and judgment of Supreme Court in J.J. Merchant's case. Hence, prayed to reject the applications.
4. Heard the arguments on both sides.
5. From the rival contention, following points arise for my consideration:-1. Whether the defendants No.1, 2 and 7 to 9
have made out grounds to condone the delay to file written statements?
2. What order?
6. Upon appreciation of rival contention, I have answered above points as follows:-
Point No.1 : In the Affirmative
Point No.2 : As per the final order
for the following:
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WP No. 7448 of 2020
REASONS
7. Point No. 1:-In the background of arguments
submitted by both sides, I have gone through the principles laid down in the rulings relied by both sides and the order sheet.
8. Before going through the factual aspects of this case, it is important to have regard to the principles of law enunciated in the rulings relied by both the sides.
9. The learned counsel for the plaintiff relied upon following rulings.
1. 2015 (16) SCC 20 (New India Assurance Company Ltd., Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.,)
2. 2002 (6) SCC 635 (Dr. J.J. Merchant and others Vs. Shrinath Chathurvedi).
3. AIR 2004 Kant 271 (Liyakhath Ali Vs. H.N. Lohitheshwar)
4. AIR 2003 Kant 426 (Smt. Savitha Gupta Vs. Smt. Nagarathna and others).
10. On the other hand the learned counsel for defendants relied upon following rulings.
1. AIR 2005 (SC) 3353 (Salem Advocate Bar Association, Tamilnadu Vs. Union of India).
2. AIR 2007 SC 2574 (M/s. R.N Jadi and brothers and others Vs. Subashchandra).
3. ILR 2016 KAR 4700 (Justice M.F. Saldanha Vs. M.P. Noronha and others)
4. ILR 2017 SCC Online SC 599 (New India Assurance Company Ltd., Vs. Hilli Multipurpose Cold Storage Pvt. Ltd)
11. I have gone through principles laid down in all the rulings relied by both the parties. The rulings relied by -6- NC: 2023:KHC:24698 WP No. 7448 of 2020 counsel for the plaintiffs is to the effect that there is a legislative mandate that written statement should be filed within 30 days and at the most it can be extended for a further period of 60 days and no more. On the other hand principles laid down in rulings relied by learned counsel for the defendants is to the effect that order VIII rule 1 of CPC are directory in nature and not mandatory.
12. New India Assurance Company Ltd., Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., case and J.J. Merchant's case dealt with dispute u/sec. 13 of the Consumer Protection Act, 1986. In this regard it is important to note that Hon'ble Supreme Court ILR 2017 SCC online SC 599 (New India Assurance Company Ltd., Vs. Hilli Multipurpose Cold Storage Pvt. Ltd) vide order dated 18.01.2017 directed to place the matter pertaining to provisions of Consumer Protection Act before Hon'ble Chief Justice of India so as to constitute a larger bench for more critical analysis. In the said order at para No. 14 Hon'ble Supreme Court referred to the order dated 04.12.2015 relied by counsel for the plaintiff in the present suit. Further at para No. 25 of the judgment Hon'ble Supreme court held that Salem Advocates Bar Association case dealt exclusively with interpretation of various provisions of CPC including order VIII rule 1. Thereby recognized the judgment rendered in Salem Advocates Bar Association case which is relied by learned counsel for defendants.
13. In this regard it is important to note that the rival views are considered by Hon'ble Supreme Court in its recent judgment (30.07.2018). Hon'ble Supreme Court in -7- NC: 2023:KHC:24698 WP No. 7448 of 2020 Civil Appeal No. 7314/2018 (The state of Bihar & Others Vs. Bihar Rajya Bhumi Vikas, Bank Samithi) has considered all the rulings relied by counsel for the plaintiff in the present suit and held which judgment has to be followed while considering application to receive written statement after the prescribed period. Hon'ble Supreme Court in Civil Appeal No. 7314/2018 (The state of Bihar & Others vs. Bihar Rajya Bhumi Vikas, Bank Samithi) has held that;
"17. In this view of the matter, it is little difficult to appreciate how the three-
judge Bench in Kailash (Supra) ought to have respected an obiter dictum view of Order VII Rule 1, of CPC in J.J. Merchant (Supra). Unfortunately, what was missed in New India Assurance Co. Ltd., (Supra) is paragraph 38 of Kailash (Supra) which has been extracted herein above. The fact that Topline Shoes (supra) was not cited before the three-judge Bench in J.J. Merchant (supra) as has been held in paragraph 38 of Kailash (supra) would render the aforesaid judgment vulnerable on Section 13(2)(A) of the Consumer Protection Act, 1986 being held to be mandatory. An earlier judgment cannot be overruled sub silentio without upsetting the reasons on which it is based. J.J. Merchant (supra) does not deal with Topline Shoes (supra) ratio, namely, that no penal consequence was provided in case the extended time of 15 days was exceeded, that therefore, no substantive right accrued in favour of the claimant, and that the statement of objects and reasons of the Act also provided that the principles of natural justice be kept in mind. The judgment in New India Assurance Co. Ltd., (supra) do not refer to paragraph 38 of Kailash (supra) or appreciate that J.J. Merchant (supra) was distinguished correctly on the ground that order VIII Rule 1, CPC did not directly arise for consideration -8- NC: 2023:KHC:24698 WP No. 7448 of 2020 in J.J.Merchant (supra). The observations on Order VIII Rule 1, CPC in paragraphs 14 an d15 of J.J. Merchant (supra) were correctly held to be in the nature of obiter dicta, and therefore, not binding on the three-judge Bench of Kailash (supra). Insofar as Kailash (supra) is concerned, it is a binding judgment on the effect of Order VIII Rule 1, CPC whose reasoning has been confirmed by a three judge Bench in Salem Bar Association (Supra)."
Therefore the principles laid down in the judgments of Hon'ble Supreme Court in Kailash Vs. Nanhku and others and Salem Bar Association case holds the field.
14. In Kailash Vs. Nanhku and others, ILR 2005 KAR 2443, it is held that:
"...... The provisions of O.8 R.1 fixing time schedule for filing of written statement are directory and not mandatory. The purpose of providing the time schedule for filing the written statement under O.VIII R.1 of CPC is to expedite and not to scuttle the hearing. ....... The power of the Court to extend time for filing the written statement beyond the time schedule provided by O.VIII, R.1 of the CPC is not completely taken away."
However, further in the very same ruling it is held:
"Extension of time may be allowed by way of any exception for reasons to be assigned by the defendant and also be placed on record in writing, however briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons -9- NC: 2023:KHC:24698 WP No. 7448 of 2020 beyond the control of defendant and grave injustice would be occasioned if the time was not extended."
Further in Salem Advocate Bar Association, Tamilnadu Vs. Union of India (AIR 2005 SC 3353) has held The use of the word 'shall' in Order VIII rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedures are made to advance the cause of justice and not to defeat it. Construction of he rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.
15. In the background of the principles laid down in the above said rulings, it is pertinent to note that it is an admitted facts that there is delay in filing written statement. However issues are not yet framed as other defendants have filed written statement and present applications are moved before framing of issues. The defendants are contending that they were prevented from filing the written
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NC: 2023:KHC:24698 WP No. 7448 of 2020 statement in time as they had to verify documents. In fact the plaintiff themselves have produced several documents. Hence, there is genuine grounds in delay in filing written statement.
16. Moreover, present suit involves rights of parties with respect to immovable properties. Hence, sufficient opportunity needs to be given as it will lead to deprivation of property of a person. At the same time the inconvenience caused to the plaintiff has to be compensated with cost.
17. Therefore, it is held that the defendants have made out grounds to condone the delay in filing written statement, of course with cost. Accordingly, I hold point No.1 in the Affirmative.
18. Point No. 2:- In view of my findings on point No. 1, I proceed to pass the following:
ORDER IA No. I and II filed by the defendants No.1, 2 and 7 to 9 u/o VIII rule 1 and r/w rule 10 of CPC are hereby allowed on cost of Rs. 2500/-.
The written statement filed by
defendants No.1 and written
statement/counter claim of defendant No.2 and adoption memo by defendants No.7 to 9 adopting the written statement of defendant No.2 is taken on record".
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4. A perusal of the material on record including the impugned order passed by the Trial Court will indicate that the same does not suffer from any illegality and infirmity nor can the same be said to be capricious or perverse occasioning failure of justice warranting interference of this Court in exercise of its powers under Article 227 of the Constitution of India, as held by the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423.
5. I do not find any merit in the present petition and the same is accordingly, dismissed.
Sd/-
JUDGE BMC List No.: 1 Sl No.: 7