Karnataka High Court
Smt. C. Bhagya vs M/S. Poornaprajna House Building on 11 January, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 11TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.38303/2017 &
WRIT PETITION NOS.1907-1913/2018 (GM-CPC)
BETWEEN:
1. SMT C. BHAGYA
W/O. SRI BEERAIAH
AGED ABOUT 43 YEARS
NO.9, HEMAVATHI LAYOUT
VADDARAPALYA
BENGALURU - 560 061.
2. SMT. SHANTHAMMA
W/O. SRI N.J.RAJANNA
AGED ABOUT 37 YEARS
NO.20/B, 1ST CROSS, 2ND MAIN,
KATRIGUPPE EAST, B.S.K. III STAGE
BENGALURU - 560 085.
3. SMT. SHAILASHREE JAIRAJ
D/O. SRI DYAMAPPA
AGED ABOUT 41 YEARS
NO.35, 1ST 'A' CROSS, 5TH BLOCK, 3RD PHASE
B.S.K. III STAGE
2
BENGALURU - 560 085.
4. Ms. VINUTHA J.
FATHER'S NAME NONT KNOWN
AGED ABOUT 22 YEARS
NO.35, HEMAVATHI LAYOUT
VADDARAPALYA, BENGALURU - 560 061.
5. Ms. IMPANA
FATHER'S NAME NOT KNOWN
AGED ABOUT 20 YEARS
NO.35, HEMAVATHI LAYOUT
VADDARAPALYA, BENGALURU - 560 061.
6. SMT. V. NALINA
W/O. SRI C.P. HARIPRASAD
AGED ABOUT 46 YEARS
R/AT NO.40, 3RD CROSS
HEMAVATHI LAYOUT
UTTARAHALLI - KENGERI MAIN ROAD
UTTARAHALLI, BENGALURU - 560 061.
7. SRI H. RAMESH
S/O. LATE HANUMAIAH
AGED ABOUT 39 YEARS
NO.94, OLD POST OFFICE ROAD
2ND BLOCK, TYAGARAJANAGAR
BENGALURU - 560 078.
8. SRI HEMAMBARA NAIDU
S/O. SRI SIDDAIAH NAIDU
AGED ABOUT 45 YEARS
NO.20/A, 18TH MAIN
R.K.LAYOUT, 3RD STAGE
PADMANABHA NAGAR
BENGALURU - 560 070.
... PETITIONERS
(BY SMT. RAKSHITHA D.J., ADV.,)
3
AND:
M/s. POORNAPRAJNA HOUSE BUILDING
CO-OPERATIVE SOCIETY LTD.
HAVING ITS OFFICE NO.390
9TH MAIN ROAD,
SRI KUMARASWAMY TEMPLE ROAD
HANUMANTHANAGAR
BENGALURU - 560 019
REPRESENTED BY ITS
SECRETARY/MANAGER
SRI L. NANJAPPA
S/O. N. LAKSHMAIAH
... RESPONDENT
(BY SRI K.R. KRISHNAMURTHY, ADV. FOR
SRI AMAR KUMAR T.S., ADV. FOR C/R.)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH/SET ASIDE THE ORDER DTD.1.8.2017 ON I.A.NO.6
IN O.S.NO.6525/2012 PASSED BY THE PRINCIPAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, VIDE
ANNEXURE-C TO THE W.P. CONSEQUENTLY, PERMIT THE
PETITIONERS TO CONTEST THE CASE ON MERITS.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
4
ORDER
The petitioners/defendants filed the present writ petitions against the order dated 01.08.2017 on I.A.No.6 made in O.S.No.6525/2012 dismissing the application for permission to file the written statement.
2. The respondent, who is the plaintiff before the trial Court filed the suit for declaration of title and to direct the defendants to vacate the portion of the land in their respective possession by demolishing the illegal construction put up in the suit schedule property and further in the event, the defendants fail to demolish the illegal structure and vacate the property, the plaintiff may be permitted to demolish the illegal structure at the cost of the defendants in the presence of a Commissioner appointed by the Hon'ble Court, contending that the plaintiff is the owner in possession by virtue of the acquisition made by the Government 5 acquiring large extent of 120 acres 36 guntas in favour of the plaintiff/Society for the purpose of formation of residential layout and the original owners have received compensation. The present defendants are subsequent purchasers and they have no right with the property of the plaintiff. Therefore, the plaintiff filed the suit for relief sought for.
3. There are 79 defendants in the main suit and some of the defendants have filed written statement and the present petitioners/defendants have not filed written statement. Therefore, the trial Court posted the matter for plaintiff's evidence. At that stage, the present petitioners/defendants filed an application under Order 8 Rule 1 r/w Section 151 of Code of Civil Procedure for permission to file written statement by condoning the delay and contended that after filing Vakalath, they have applied for some documents from the concerned 6 authorities namely, BDA, BBMP and High Court and the said authorities have not given documents sought for within the time. In the meantime, the other defendants negotiated with the plaintiff to settle the dispute in respect of their sites. It is further contended that the plaintiff and some other defendants have entered into compromise and compromise was reported before the Court behind the back of the present defendants. The matter was adjourned for several dates of hearing for settlement between the plaintiff and present defendants and in fact there were several proposal to compromise the matter between the plaintiff and defendants in respect of the property owned by them. In view of several stages being changed from time to time, in the process of delay in getting required documents, the defendants were unable to file written statement within the time. The defendants submits that delay is bonafide 7 and not intentional. Therefore, they sought for permission to file written statement.
4. The said application was opposed by the plaintiff contending that in view of the amended provisions under Order 8 Rule 1 of Code of Civil Procedure, the maximum time limit is 90 days to file written statement. They have not filed the same within the time. The reasons explained for delay is not sufficient and absolutely no reasons are assigned and most of the defendants have compromised the matter between the plaintiff. Though sufficient time was granted, present petitioners/defendants have not filed written statement. Therefore, the plaintiff sought for dismissal of the application.
5. The trial Court considering the application and objections, by the impugned order dated 01.08.2017 dismissed the application mainly on the 8 ground that there is a delay of 3½ years in filing the application and the application is filed with an intention to protract the proceedings. Hence, these writ petitions are filed.
6. I have heard the learned counsel for the parties to the lis.
7. Miss. Rakshitha D.J., learned counsel for the petitioners/defendants vehemently contended that the impugned order passed by the trial Court dismissing the application for permission to file written statement is erroneous and contrary to the material on record. The trial Court erred in dismissing the application mainly on the ground that there is a delay of 3½ years and the application filed by the defendants is only to protract the proceedings. She would further contend that the defendants have filed the application for permission to file written statement specifically 9 stating that the defendants applied for some documents, namely with the BDA, BBMP and before the High Court and the documents were not received within the time and therefore there was delay and the delay is bonafide and not intentional. The trial Court ought to have condoned the delay permitting the defendants to file written statement. She further contended that some of the defendants/petitioners have put up construction and some of them have vacant sites and the value of the property of individual defendants is about lakhs. Therefore, the trial Court ought to have allowed the application imposing some reasonable costs. The same has not been done in the present case. Therefore, she sought to quash the impugned order passed by the trial Court by allowing the present writ petitions.
8. In support of her contentions, she relied upon the decision of the Hon'ble Supreme Court in the 10 case of R.N. Jadi & Brothers and Others vs. Subhashchandra reported in (2007) 6 SCC 420 (3 Judges Bench) and also the decision in the case of Kailash vs. Nanhku and Others reported in AIR 2005 SC 2441.
9. Per contra, Sri K.R. Krishnamurthy, learned counsel for Sri T.S. Amar Kumar, for the plaintiff/respondent sought to justify the impugned order and contended that the State Government acquired the land including the lands of the vendors of the present petitioners and the suit is filed for declaration and possession. Out of 79 defendants, most of them have compromised the matter and an offer was made to the present defendants but they have not yet come forward for compromise. Inspite of granting sufficient time, the defendants have not availed opportunity and there is a delay of 3½ years and the 11 application is filed only to protract the proceedings. Therefore, he sought to dismiss the writ petitions.
10. In support of his contentions, learned counsel relied upon the very judgment relied by the learned counsel for the petitioners in the case of R.N. Jadi & Brothers and Others vs. Subhashchandra reported in (2007) 6 SCC 420 (3 Judges Bench) and invited the attention of the minor view though concurring that it would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 of Code of Civil Procedure must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by the courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. He also relied upon the judgment of the Hon'ble Supreme Court in the case of 12 Mohammed Yusuf vs. Faij Mohammad and Others reported in (2009) 3 SCC 513 to the effect that where there was a substantial failure of justice or the orders passed by courts below contained error apparent on the face of the record warranting interference by a superior court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, allowed it, thereby setting aside the orders, such interference by High Court, without assigning any reason therefor, held unsustainable.
11. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that arise for consideration in these petitions are:
1) Whether the trial Court is justified in dismissing the application filed by the defendants under Order 8 Rule 1 of Code of Civil Procedure in filing written statement?13
2) Whether the defendants can be permitted to file written statement after lapse of 3 ½ years in the facts and circumstances of the present case?
12. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
13. It is undisputed fact that the plaintiff filed suit for declaration and for possession in respect of the suit schedule property morefully described in the schedule bearing Sy.No.24/2 measuring 3 acres 11 guntas situated at Vaddarapalya Village, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru acquired by the State Government on behalf of the plaintiff. It is the specific case of the plaintiff that the State Government acquired large extent of land about 120 acres 36 guntas in favour of the plaintiff - Society in various survey 14 numbers for formation of residential layout and the vendors of the defendants have failed to succeed in the acquisition proceedings. The present defendants are subsequent purchasers and they have no right in respect of the suit schedule property.
14. It is also not in dispute that out of 79 defendants, some of them have entered into compromise with the plaintiff in respect of their respective sites formed in the suit schedule property. Sri Krishnamurthy, learned counsel for the plaintiff fairly submits that in fact an offer was made to the present defendants to settle the matter on par with the other defendants who have settled the matter with the plaintiff and assured that the same sites will be allotted to the present defendants on payment of Rs.1,000/- per square feet on intermediate and location of each sites 15 but the petitioners/defendants have not yet come forward.
15. When the matter was posted for plaintiff's evidence, at that stage, the present defendants filed an application under Order 8 Rule 1 CPC r/w Section 151 of Code of Civil Procedure for permission to file written statement and specifically stated in the affidavit that after filing Vakalath, the present defendants have applied for some documents from the concerned authorities, namely, BDA, BBMP and the High Court to defend their case in the suit and the authorities have not given the documents within time. In the meantime, the other defendants negotiated with the plaintiff for settlement of the dispute and some of the defendants have entered into compromise and the compromise was reported before the Court behind the back of the present defendants. When the matter was 16 adjourned for several dates for settlement as well as conciliation between the plaintiff and present defendants, there were several compromise petitions filed by the plaintiff with other defendants in respect of the property not owned by the plaintiff. In view of the stages being changed from time to time in the process of delay in getting the required documents, the delay in filing the written statement was due to the reasons stated above and not intentional.
16. Though the same was disputed by the plaintiff by filing objections contending that there was an inordinate delay of 3½ years in filing the application, the fact remains that they have applied for certain documents before various authorities including this Court and in view of the stages being changed from time to time in the process of delay in getting the required documents, the defendants were unable to file written 17 statement. Ultimately, the fact remains that suit between plaintiff and defendants is in respect of immovable property/individual interest and according to the learned counsel for the petitioners some of them have already put up construction and some of the sites are vacant. The value of the sites runs into lakhs and they cannot be deprived on technicality.
17. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its 18 power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
18. This Court is aware of the fact that the object behind substituting the provisions of Order 8 Rule 1 of Code of Civil Procedure is to expedite hearing and not to scuttle the same. The provision does not deal with the power of the Court and also does not specifically take away power of the Court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained under Order 8 Rule 1 is procedural it is not barred on substantial law. The substituted Order 8 Rule 1 of Code of Civil Procedure intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases and causing inconvenience to the plaintiff. It is well known 19 that justice if delayed may amount to justice denied and justice hurried may in some cases amount to justice buried.
19. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice.
20. The Hon'ble Supreme Court in the case of Sandeep Thapar vs. SME Technologies Private 20 Limited reported in AIR 2014 SCW 431, while considering the provisions of Order 8 Rule 1 of Code of Civil Procedure relying upon the decision in the case of Kailash vs. Nanhku and Others reported in AIR 2005 SC 2441, has held at para 7 as follows:
"7. We have considered the submission made by the learned counsel. In our opinion, the submission made by the learned counsel is well founded in view of the observations made by this Court in Kailash v. Nanhku and others, reported in (2005) 4 SCC 480 : (AIR 2005 SC 2441 : 2005 AIR SCW 2346), wherein this Court has observed as follows:
46. We sum up and briefly state our conclusions as under:
(i) ......
(ii).......
(iii)......
(iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an 21 embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away.
(v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, moreso when the period of 90 days has expired.
Extension of time may be allowed by way of an exception, for reasons to be assigned by the 22 defendant and also be placed on record in writing, howsoever 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 beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case."
21. Though Sri Krishnamurthy, learned counsel for the respondent relied upon the judgment in the case of R.N. Jadi & Brothers and Others vs. Subhashchandra reported in (2007) 6 SCC 420 (3 Judges Bench), wherein concurring with the majority of the Hon'ble Judges held that the written statement has to be allowed in exceptional circumstances even at a belated stage by imposing cost, but the minority view - Single Judge concurring with the Division Bench has 23 observed that it would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 of Code of Civil Procedure must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts.
22. In view of the conflicting judgment by 3 Judges Bench, this Court has to follow the majority view and the majority view was that application can be allowed and the written statement can be taken on record even after a belated stage i.e., beyond 90 days period by imposing cost in order to do substantial justice between the parties.
23. Insofar as other judgment relied upon by the learned counsel for respondent in the case of 24 Mohammed Yusuf vs. Faij Mohammad and Others reported in (2009) 3 SCC 513, the power of the Court to interfere without assigning any reason therefore, held unsustainable. This Court has no quarrel with the dictum of the Hon'ble Supreme Court. But in the orders passed by the trial Court, no proper reasons are assigned in the impugned order. Therefore, the said judgment has no application to the facts of the present case.
24. Admittedly, in the present case, the trial Court by the impugned order has not assigned any detailed reason to dismiss the application except holding that there is a delay of 3½ years and the application was filed only to protract the proceedings. The trial Court has not considered the reasons assigned by the defendants in the application for permission. Therefore, in view of the latest judgment of the Hon'ble 25 Supreme Court in the case of Sandeep Thapar vs. SME Technologies Private Limited reported in AIR 2014 SCW 431, considering the very provision under Order 8 Rule 1 of Code of Civil Procedure as stated supra, the 1st point raised in these writ petitions has to be answered in the negative holding that the trial Court is not justified in dismissing the application filed by the defendants under Order 8 Rule 1 of Code of Civil Procedure.
25. In view of the aforesaid reasons assigned by this Court and the law declared by the Hon'ble Supreme Court, it is clear that the provisions of Order 8 Rule 1 of Code of Civil Procedure is not mandatory and it is only directory and the filing of written statement is to expedite and not to scuttle the hearing. It does not impose an embargo on the power of the Court to extend time. The present petitioners/defendants have made 26 out a case, the circumstances which are exceptionally occasioned by a reason beyond their control and grave injustice would be caused if the time to file written statement is not extended. Therefore, the application filed by the defendants have to be allowed by imposing cost. Accordingly, the 2nd point raised in these petitions has to be answered in the affirmative holding that the defendants have made out a case to permit to file written statement in the interest of justice.
26. Due to the delay for which the plaintiff has been driven before this Court, the defendants have to pay individual cost at the rate of Rs.3,000/- each. As there are 8 defendants in the present writ petitions, cost comes to Rs.24,000/-. Since the plaintiff is a Society, this Court is of the considered opinion that the cost has to be paid to the Legal Services Authority within a 27 period of three weeks from the date of receipt of a copy of this order.
27. For the reasons stated above, the writ petitions are allowed. The impugned order dated 01.08.2017 on I.A.No.6 made in O.S.No.6525/2012 is quashed. I.A.No.6 filed by the defendants under Order 8 Rule 1 of Code of Civil Procedure is allowed subject to payment of cost of Rs.24,000/- to be paid to the Legal Services Authority within a period of three weeks from the date of receipt of a copy of this order. The trial Court is directed to take on record the written statement already filed along with the application and proceed strictly in accordance with law and on merits.
28. However, it is made clear that out of 79 defendants, most of them have already entered into compromise with the plaintiff and as the suit is of the year 2012 and we are in 2017, the trial Court is directed 28 to expedite the suit itself subject to co-operation of the plaintiff and defendants in the present writ petitions in accordance with law.
Sd/-
JUDGE ca