Karnataka High Court
Sri G.R. Srinivas Reddy @ Babu vs Mrs. Latha Sharma on 18 July, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2023:KHC:24973
WP No. 30015 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
WRIT PETITION NO.30015 OF 2019 (GM-CPC)
BETWEEN:
SRI G.R. SRINIVAS REDDY @ BABU,
AGED ABOUT 48 YEARS,
S/O G.A. RAMASWAMY REDDY,
R/AT GUNJOOR VILLAGE,
VARTHUR HOBLI, BANGALORE EAST TALUK.
...PETITIONER
[BY SRI. PADMANABHA MAHALE, SR. COUNSEL FOR
SRI. H.C. NATARAJA, ADVOCATE (PH]
AND:
1. MRS. LATHA SHARMA,
AGED ABOUT 71 YEARS,
W/O SRI. V. AMAR SHARMA,
C/O MR. S.V. SHARMA,
RETIRED ACCOUNTANT,
R/AT NO.470545 OF VI POINT,
IV NO.45, PALACE ROAD,
BANGALORE - 560 001.
Digitally signed by 2. SRI. PRAKASH SHANT CHANDRA,
GURURAJ D
AGED ABOUT 52 YEARS,
Location: High
Court of Karnataka S/O PRAKASH CHANDRA,
R/AT C/O MR. PRAKASH CHANDRA,
NO.59, QUTAB VIEW APARTMENTS,
OPPOSITE TO QUTAB HOTEL,
NEW DELHI - 110 016.
3. MRS. RACHEL WILLIAM JOSEPH,
AGED ABOUT 41 YEARS,
D/O LATE MR. J.T. WILLIAM JOSEPH,
R/AT NO.73, 10 'A' CROSS,
EJIPURA, VIVEKANAGAR POST,
BANGALORE - 560 047.
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NC: 2023:KHC:24973
WP No. 30015 of 2019
4. MRS. SARAH WILLIAM JOSEPH,
AGED ABOUT 66 YEARS,
W/O LATE MR. J.T. WILLIAM JOSEPH,
R/AT NO.73, 10 'A' CROSS,
EJIPURA, VIVEKANAGAR POST,
BANGALORE - 560 047.
5. MRS. FAY VIRESH P. KOTHARI,
W/O MR. VIRESH P. KOTHARI,
R/AT NO.38/A,
ARVASU CO-OPERATIVE SOCIETY,
ISI ROAD, TVS 6 SANTA CRUZ (WEST)
MUMBAI - 400 054.
...RESPONDENTS
[BY SRI. M. ARUN PONAPPA, ADVOCATE FOR R1 TO R3 & R5 (PH);
SERVICE OF NOTICE TO R4 IS D/W]
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
PASSED IN O.S.NO.420/2008 DATED 28.06.2019 PASSED BY THE 2ND
ADDL. CIVIL JUDGE BANGALORE RURAL DISTRICT BANGALORE ON
APPLICATION FILED U/S 151 OF CPC FILED BY THE R-1, 2, 3 & 5, AS
PER ANNEXURE-A AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Challenging order dated 28.06.2019 passed by II Additional Civil Judge, Bengaluru Rural District, Bengaluru, on application filed by respondents no.1 to 3 and 5 herein under Section 151 of CPC in O.S.no.420/2008, this writ petition is filed.
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NC: 2023:KHC:24973 WP No. 30015 of 2019
2. Shri Padmanabha Mahale, learned Senior Counsel appearing for Shri H.C.Nataraja, counsel for petitioner submitted that petitioner herein was plaintiff in O.S.no.420/2008 filed for permanent injunction against defendants/respondents herein. In said suit, due to non-filing of written statement on time, trial Court had taken written statement of defendants as 'not filed' and proceeded to pass impugned order. On 10.01.2019, applications were filed under Section 151 of CPC, by defendants no.1 to 3 and 5 for recalling above order and for permission to file written statement by condoning delay of nine years. But said application was accompanied by memorandum of facts of counsel.
3. Though, application was opposed, trial Court under impugned order allowed same on cost. It was submitted that order was totally unsustainable, as trial Court failed to apply its mind to requirements of law, while passing impugned order. It was submitted that this Court in case of Sri Ashok Murthy and Ors. v/s Smt.Muniyamma since deceased by her LRs and Ors., reported in 2020 (4) KCCR 2877 and in Smt.Chandrakala v/s Smt.Hanumakka and Ors., reported in 2018 (2) KCCR 1124, had held that delay in filing written -4- NC: 2023:KHC:24973 WP No. 30015 of 2019 statement could not be condoned for mere asking. Only under exceptional circumstances, in case non-extension would render grave injustice and where delay was not on account of laxity and gross negligence on part of defendants or counsel, same could be extended.
4. It was submitted that trial Court firstly, failed to notice that application was not supported by affidavit, but memorandum of facts of counsel by including facts which would be within knowledge of party. It was further submitted that while passing impugned order, trial Court did not analyze whether reasons assigned by defendants were exceptional. Except stating that delay could be condoned by compensating plaintiff, there was no other substantial reason assigned and therefore, impugned order would be unsustainable.
5. Shri M. Arun Ponappa, learned counsel for respondents no.1 to 3 and 5 sought to support impugned order. It was submitted that Hon'ble Supreme Court in case of Bharat Kalra v/s Raj Kishan Chabra, reported in 2022 SCC OnLine SC 613, had held referring to it's earlier decision in Kailash v/s Nanhku and Ors., reported in 2005 (4) SCC 480, that delay in filing written statement could be condoned by -5- NC: 2023:KHC:24973 WP No. 30015 of 2019 compensating plaintiff with costs. Learned counsel also relied upon decision of this Court in A.V.Purushotam v/s N.K.Nagaraj, reported in ILR 2003 Kar. 2459. It was alternatively submitted that defendants would be entitled to seek permission of trial Court to file written statement at any time, upto stage of passing judgment. Trial Court having invoked such power and impugned order being discretionary, would not call for interference. It was also submitted that in case of remand, defendants be reserved liberty to supplement their applications with affidavit of party as refusal to permit filing of written statement would cause to grave injustice to them.
6. Heard learned counsel and perused writ petition record.
7. From above submission, it is not in dispute that in O.S.no.420/2008, defendants had not filed written statement for nine years after service of summons. It is also not in dispute that trial Court had taken their written statement as 'not filed' and posted matter for evidence. At that stage, defendants no.1 to 3 and 5 filed applications for recalling order and trial Court considering by reasons as stated therein after -6- NC: 2023:KHC:24973 WP No. 30015 of 2019 condonation of delay of nine years, permitted to file written statement. Said applications were supported by memorandum of facts of counsel. Averments especially about defendants being under impression about plaintiff not seriously pursuing suit etc., would be within knowledge of party and counsel representing them could not have asserted same in his memorandum of facts.
8. On perusal of impugned order, trial Court has apparently condoned delay and permitted to file written statement on ground that plaintiff could be compensated with costs. Manner of exercise of power by Civil Court permitting to file written statement beyond period of 90 days having been well-set. Unless a case of exceptional circumstances or grave injustice being caused in case of refusal and only if laxity or gross negligence on part of defendants is ruled-out, trial Court would not be justified in permitting filing of written statement belatedly. Since order impugned would not meet such requirements, same would require to be set aside on ground of non-application of mind.
9. Consequently, writ petition is allowed; impugned order dated 28.06.2019 on application filed under Section 151 -7- NC: 2023:KHC:24973 WP No. 30015 of 2019 of CPC by defendants no.1 to 3 and 5/respondents no.1 to 3 and 5 herein is set aside. Matter is remanded back to trial Court for reconsideration in light of observations above and ratio of decisions relied upon by respective parties. Liberty is reserved to defendants no.1 to 3 and 5 to support their application with appropriate additional affidavit, if so advised. Trial Court shall reconsider same in accordance with law and pass appropriate orders thereon as early as possible.
Sd/-
JUDGE GRD