Karnataka High Court
Channappa @ Chanabasappa S/O. Lingaraj ... vs Kumar @ Lingaraj Balehosur on 5 September, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.76448/2013
C/W
WRIT PETITION NO.76447/2013 (GM-CPC)
IN W.P.NO.76448/2013
BETWEEN:
CHANNAPPA @ CHANABASAPPA
S/O. LINGARAJ BALEHOSUR,
AGE: 58YEARS, OCC: AGRICULTURE AND
BUSINESS, R/O. VIDYANAGAR B BLOCK,
HAVERI.
... PETITIONER
(By Sri. AMIRKHAN A.PATHAN, ADV.)
AND
1. KUMAR @ LINGARAJ BALEHOSUR
AGE:51 YEARS, OCC: AGRICULTURE
AND BUSINESS,
R/O. NEAR HOSA ISHWAR DEVASTHAN,
HAVERI.
2. BASAVARAJ S/O. LINGARAJ BALEHOSUR
AGE: 47YEARS,OCC:AGRICULTURE AND
2
BUSINESS,
R/O. NEAR HOSA ISHWAR DEVASTHAN ROAD,
HAVERI.
3. MALLIKARJUN S/O. LINGARAJ BALEHOSUR,
AGE:62 YEARS,OCC: AGRICULTURE AND
BUSINESS,
R/O. VIDYANAGAR, B BLOCK, HAVERI.
4. SIDDESHWARA S/O. LINGARAJ BALEHOSUR,
AGE:60 YEARS,OCC: DOCTOR,
R/O. SHIVABASAVANAGAR, HAVERI.
5. VISHWANATH S/O. LINGARAJ BALEHOSUR,
AGE:54 YEARS,OCC: AGRICULTURE AND
BUSINESS,
R/O. BASAVESHWARANAGAR, HAVERI.
... RESPONDENTS
(By Sri. N P VIVEKMEHTA, ADV. FOR C/R2-R4,
R1 & R5 ARE SERVED BUT UN-REPRESENTED.)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
ANNEXURE-F THE ORDER DATED:18/02/2013 PASSED BY
ADDITIONAL SENIOR CIVIL JUDGE, HAVERI IN O.S.NO.63/2006
ON I.A.NO.32 AND ALLOW THE SAME, ETC.
IN WP NO 76447 OF 2013
BETWEEN
CHANNAPPA @ CHANABASAPPA
S/O. LINGARAJ BALEHOSUR,
AGE: 58YEARS, OCC: AGRICULTURE AND
3
BUSINESS,
R/O. VIDYANAGAR B BLOCK, HAVERI.
... PETITIONER
(By Sri. AMIRKHAN A.PATHAN, ADV.)
AND
1. MURGESH
S/O. SIDDESHWARA BALEHOSUR,
AGE:31 YEARS, OCC: DOCTOR
R/O. SHIVABASAVANAGARA, HAVERI.
2. VINAYAKA @ VINAY
S/O. BASAVARAJ BALEHOSUR,
AGE: 17 YEARS, OCC: STUDENT,
MINOR, BY HIS MINOR GUARDIAN BASAVARAJ
S/O.LINGARAJ BALEHOSUR, AGE: 47 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O. NEAR HOSA ISHWAR DEVASTHAN ROAD,
HAVERI.
3. MALLIKARJUN S/O. LINGARAJ BALEHOSUR,
AGE:62 YEARS,OCC: AGRICULTURE AND
BUSINESS,
R/O. VIDYANAGAR B BLOCK, HAVERI.
4. SIDDESHWARA S/O. LINGARAJ BALEHOSUR
AGE:60 YEARS,OCC: DOCTOR,
R/O. SHIVABASAVANAGAR, HAVERI.
5. VISHWANATH S/O. LINGARAJ BALEHOSUR,
AGE:54 YEARS,OCC: AGRICULTURE AND
BUSINESS, R/O. BASAVESHWARANAGAR,
HAVERI.
6. KUMAR S/O. LINGARAJ BALEHOSUR,
AGE: 51YEARS, OCC: AGRICULTURE AND
BUSINESS,
R/O. NEAR HOSA ISHWAR DEVASTHAN ROAD,
HAVERI.
7. LINGARAJ S/O. KUMAR BALEHOSUR,
AGE: 17 YEARS, OCC: STUDENT MINOR BY
4
HIS MINOR GUARDIAN MAMATA W/O. KUMAR
BALEHOSUR,
R/O. NEAR HOSA ISHWAR DEVASTHAN ROAD,
HAVERI.
8. AKKAVVA @ AKKAMAHADEVI @ UMA W/O.
CHANABASAPPA,
DESHNOOR, AGE: 56 YEARS,
OCC: HOUSEHOLD WORK,
R/O. MANJUNATH NAGAR, BAILHONGAL,
DIST: BELGAUM.
9. NEELAVVA @ NEELAMMA @ NEELA
W/O. JAGADISH
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O. ANAND TALKIES ROAD,
GOKAK, DIST: BELGAUM.
10. MALATI W/O. MRUTHUNJAYA UDACHANADA
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O. CUSTOMS & EXCISE QUARTERS,
YELHANKA, NEW TOWN, BANGALORE.
... RESPONDENTS
(By Sri. N P VIVEKMEHTA, ADV. FOR R3-4 AND C/R1 & R2,
R5-R7 AND R9 ARE SERVED BUT UNREPRESENTED.)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
ANNEXURE-F THE ORDER DATED:18/02/2013 PASSED BY
ADDITIONAL SENIOR CIVIL JUDGE, HAVERI IN O.S.NO.68/2010
ON I.A.NO.4 AND ALLOW THE SAME, ETC.
5
These petitions coming on for hearing this day, the
Court made the following:
ORDER
Petitioner is defendant No.6 in O.S.63/06 and defendant No.4 in O.S.68/10, pending on the file of Civil Judge (Sr. Dn.) at Haveri. He was served with suit summons of O.S.63/06 and entered appearance through an advocate on 11.10.2006. By an order dated 04.09.2006, written statement of the petitioner was taken as not filed. In O.S.68/10, petitioner put in appearance through an advocate on 15.03.2011, but did not file written statement. Both the suits having been consolidated, trial has taken place. When the suits were at the stage of hearing main arguments, on 04.02.2013, petitioner filed I.A.32 in O.S.63/06 and I.A.4 in O.S.68/10, seeking to condone the delay in filing of written statement/s and for according of permission to file the written statement/s. Said applications having been opposed by the plaintiff in O.S.68/10 and defendant No.2 in O.S.63/06, learned Trial Judge has passed separate, but 6 identical order, on 18.02.2013, whereby, the applications were rejected. Assailing the said orders, these writ petitions have been filed.
2. Mr. Amirkhan A. Pathan, learned advocate for the petitioner contended that the Trial Court has failed to consider the reasons stated in the affidavits filed in support of the applications and by adopting a narrow approach, the applications have been rejected. He submitted that on account of bona fide reasons, written statements were not filed, earlier than 04.02.2013 and the suits being for passing decree of partition and separate possession, if, the written statements are not taken on record and the matter decided, the petitioner would suffer irreparable loss. Learned counsel submitted that the plaintiff in O.S.63/06 having not objected to the filing of I.A.32, objections filed by defendant No.2, could not be the basis to reject I.A.32 and hence there is procedural impropriety by the learned Trial Judge.
3. Sri N.P. Vivek Mehta, learned advocate appearing for the contesting respondents, on the other 7 hand, by taking me through the record of the writ petitions, submitted that there is a collusion between the plaintiff in O.S.63/06 and the petitioner, on account of which, objections to I.A.32 was not filed and his client being the plaintiff in O.S.68/10, the same having been clubbed with O.S.63/06, is justified in opposing the prayers in I.As.4 & 32 respectively. Learned counsel submitted that the Trial Court, in the facts and circumstances of the case, is justified in dismissing the applications filed, which were intended to protract the proceedings of the suits, that too, when the two consolidated suits are at the stage of hearing of main arguments.
4. Perused the writ record. There is no dispute that the two suits have been consolidated and trial is complete. In the circumstances, the plaintiff in O.S.No.68/2010 and defendant in O.S.No.63/2006 has the locus standi to oppose the prayers in IA nos. 4 & 32 filed in the suits and there is no procedural impropriety committed by the trial Judge in considering the said objections. 8
5. For nearly five years, written statement has not been filed in O.S.63/06. In O.S.68/10, after entering appearance through an advocate on 15.03.2011, for nearly two years, written statement was not filed. The affidavits filed support of the applications are bald. No reason much less exceptional case has been made out to condone the delay in filing written statements.
6. In MOHAMMED YUSUF Vs. FAIJ MOHAMMAD AND OTHERS - 2009 (3) SCC 513, Apex Court has held, that the jurisdiction under Article 227 of the Constitution is limited and the order impugned could be set aside only on limited grounds i.e., if the impugned orders are illegal, irrational and there is any procedural impropriety. Mr. A.A. Pathan has not been able to show, the Trial Court having committed any procedural impropriety or illegality in the matter of passing the impugned order. Since written statements were not filed for years and have been filed only when the suits are at the stage of hearing of main arguments and since the suits cannot be reverted back to 9 the stage of pleadings, issues and trial, it cannot be said that the view taken by the learned Trial Judge in passing the impugned order suffers from any irrationality, that too, when the Apex Court has made it clear that defendants may be permitted to file written statement after the expiry of 90 days' period, in exceptional situations. No case much less any exceptional case has been made out in the affidavits filed in support of I.As. 4 & 32 filed in the suits. The impugned order, in the circumstances noticed supra, does not suffer from any procedural impropriety and cannot be termed as irrational. The contentions urged by Mr.A.A.Pathan are devoid of merit.
In the circumstances, I do not find any justification to entertain these writ petitions. Petitions are rejected, with no order as to costs.
SD/-
JUDGE sac*