Karnataka High Court
Sri Munegowda vs Smt Shanthamma on 7 March, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.61200 OF 2016 (GM-CPC)
BETWEEN:
Sri. Munegowda
S/o Venkategowda
Aged about 36 years
Residing at Chikka Aralagere Village
Sulibele Hobli
Hosakote Taluk
Bengaluru Rural District
Bengaluru-562110
... Petitioner
(By Sri K.P. Bhuvan, ADV.)
AND:
1. Smt. Shanthamma,
W/o M. Sreenivasa,
Aged about 28 years
R/at Permachanahalli Village
Kaivara Hobli
Chinthamani Taluk
Kolar District-563 128
2. Smt. Sowbhagyamma
W/o Manjunatha
Aged about 25 years
2
R/at Prejenahalli Village
Vemgal Hobli
Kolar Taluk-563 101
3. Thimmaiah,
S/o. Late Dasappa,
Aged about 80 years
R/at Chikka Aralagere Village
Sulibele Hobli
Hosakote Taluk
Bengaluru Rural District
Bengaluru-562 110
4. T. Venkate Gowda
S/o Thimmaiah
Aged about 48 years
R/at Chikka Aralagere Village
Sulibele Hobli
Hosakote Taluk
Bengaluru Rural District
Bengaluru-562 110
5. Jayamma
W/o Chowdappa
Aged about 60 years
R/A Doddasone Village
Devanahalli Taluk
6. Padmamma
W/o Chowdappa
Aged about 46 years
R/A Doddasone Village
Devanahalli Taluk
7. Smt. Maniyamma
W/o Nagaraja
Aged about 51 years
R/at Devanayakanahalli Village
3
Reddahalli Post
Bengaluru Rural District-562 110
8. Lakshmamma
W/o Venkategowda
Aged about 47 years
R/at Chikka Aralagere Village
Reddahalli Post
Bengaluru Rural District-562 110
9. Smt. Kalpana
W/o Gopalakrishna
Aged about 34 years
R/at Gobbaragunte Village
Avathi Hobli
Devanahalli Taluk
Bengaluru Rural District-562 114
10. Sharadamma
W/o T. Venkategowda
Aged about 48 years
Residing at Chikka Aralagere Village
Sulibele Hobli
Hosakote Taluk
Bengaluru Rural District
Bengaluru-562 110
11. Shashikala
D/o T.C. Venkategowda
W/o Suresh
Aged about 30 years
R/at Chikka Aralagere Village
Sulibele Hobli
Hosakote Taluk
Bengaluru Rural District-562 110
12. Sri Suresh,
S/o T. Venkategowda
4
Major
R/at Chikka Aralagere Village
Sulibele Hobli
Hosakote Taluk
Bengaluru Rural District-562110
... Respondents
(By Sri K. Shivashankar, Adv for R1 and R2;
Notice to R3 to R12 is dispensed with Vide Order
Dated 28.02.2017)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUNGED ORDER DATED 19.10.2016 PASSED ON
THE APPLICATION (I.A.12) UNDER SECTION 151 OF CPC
IN O.S. NO.1792/2006 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE, SENIOR DIVISION, BENGALURU RURAL
DISTRICT, BENGALURU AT ANNEXURE-E.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The 9th defendant filed the present writ petition against the impugned order dated 19.10.2016 rejecting IA No.12 filed by him under Section 151 of Code of Civil Procedure seeking permission to file written statement in O.S.No.1792/2006 on the file of the Principal Civil 5 Judge, Senior Division, Bengaluru Rural District, Bengaluru.
2. Respondent Nos.1 and 2 filed a suit in O.S. No.1792/2006 for partition and separate possession in respect of suit schedule properties, contending that, the plaintiffs and defendants are members of a joint family and the suit schedule properties are joint family properties. Except 9th defendant all other defendants filed written statement. When the matter was set down for cross-examination of PW1, 9th defendant filed the present application under Section 151 of CPC seeking permission to allow him to file written statement and objections, contending that, at the earlier stage he and 11th defendant have received summons from the Court, accordingly they engaged their counsel for prosecuting the case and as the earlier counsel on record was not properly instructed them to file written statement, even 6 on some hearings of the Court, he has not appeared before the Court and ultimately he came to know that the counsel has not filed written statement, when the said counsel has given "no objection certificate" he engaged a new counsel, thereafter, after preparation of written statement, it was filed before the Court along with the application for permission. The application was opposed by the plaintiffs contending that though the 9th and 11th defendants engaged a common counsel and appeared before the Court, neither they opposed the suit nor filed written statement within the time limit and in view of the Provision under Order-VIII Rule-1 of Code of Civil Procedure, the defendant cannot be allowed to file written statement after lapse of 7 years 120 days.
3. The trial Court considering the entire material on record, by the impugned order dated 19.10.2016 rejected 7 I.A.No.12 filed under Section 151 of Code of Civil Procedure seeking permission to file written statement. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri K.P. Bhuvan, learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the application filed by the petitioner under Section 151 of Code of Civil Procedure seeking permission to file written statement, is erroneous and contrary to Law. He further contended that when the suit filed by the plaintiffs is for partition and separate possession in respect of the suit schedule properties, which are joint family properties of plaintiffs and defendants, the trial Court ought to have allowed to file written statement as the rights of the parties are 8 involved. He further contended that the trial Court has come to the wrong conclusion that the 3rd respondent, who is the father of the petitioner herein, has filed his written statement and framed the issues, holding that there is no merit in the written statement filed by the petitioner and further observed that in the absence of the written statement of the petitioner there was no impediment to dispose of the case on merit, which is erroneous and contrary to the material available on record. In support of his case, he relied upon the judgment of the Hon'ble Supreme Court in the case of Sandeep Thapar v. SME Technologies (P) Ltd., reported in AIR (2014) 2 Supreme Court 302 and prayed to allow the writ petition by setting aside the impugned order passed by the trial Court.
6. Per contra, learned counsel Sri K. Shivashankar, appearing for respondent Nos.1 and 2 sought to justify 9 the impugned order contending that the present application filed by the petitioner seeking permission to file written statement after lapse of 7 years 120 days is nothing but dragging the proceedings and he was not keen in filing written statement. Therefore, he submits that the petitioner cannot be permitted to file the written statement at this stage. He further contended that the written statement filed by the 3rd respondent who is father of petitioner can be adopted by the petitioner. Therefore, he submits that there is no necessary to file written statement and sought for dismissal of the writ petition.
7. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is:-
"Whether the impugned order passed by the trial Court rejecting I.A.No.12 for permitting to file written statement is justified in the facts and circumstances of the present case?"10
8. 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.
9. It is an undisputed fact that the respondents, who are plaintiffs before the trial Court, have filed the suit for partition and separate possession in respect of 10 items of the suit schedule properties, which are joint family properties of the plaintiffs and defendants. The 1st defendant filed written statement denying the averments made in the suit contending that there was earlier partition. The present petitioner, who is 9th defendant, sought to file written statement to the effect that there was a prior partition between the members of joint family and the present suit filed for partition and separate possession is not maintainable. The trial 11 Court rejected the application filed by the 9th defendant merely on the ground that the application was filed when the case is set down for the cross-examination of PW1.
10. Further, it is not in dispute that the suit is filed for partition and separate possession in respect of suit schedule properties consisting of 10 items situated within the Sulebele Village of Hosakote Taluk, which are very potential properties, the rights of the parties have to be decided. When there was no dispute with regard to the suit schedule properties that they are joint family properties of plaintiffs and defendants, the matter has to be adjudicated on merits with reference to the pleadings adduced and documents produced by both the parties. Under Order-VIII Rule-1 of CPC the defendant shall, within thirty days from the date of service of summons on him, present a written statement 12 of his defence. If he fails to file written statement within a period of 30 days after service of notice to him, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of costs as the Court deems fit and it shall not be later then 120 days.
11. The Hon'ble Supreme Court while considering the Provisions under Order VIII, Rule 1 of CPC in the case of Sandeep Thapar v. SME Technologies (P) Ltd., reported in AIR (2014) 2 Supreme Court 302 relying upon its earlier judgment in the case of Kailash V/s. Nanhku and Others reported in AIR (2005) 4 SCC 480, has held as under:
"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 13 defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of 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.
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 14 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, more so when the period of 90 days has expired. Extension of time may be allowed by way of exception, for the reasons to be assigned by the defendant 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 15 be demanded, depending on the facts and circumstances of a given case."
12. In the instant case, it is an admitted fact that the suit is in respect of joint family properties consisting of ten items which are very potential properties and rights of the parties have to be decided after adjudication between the parties. Though, there is delay in filing the written statement, the reasons assigned in the application for non-filing of written statement within the time prescribed under Order VIII, Rule 1 of CPC is that though the appellant engaged the counsel, he did not file written statement within the time limit and subsequently changed the counsel and thereby filed written statement along with the application. Because of the mistake committed by the learned counsel engaged by the 9th defendant the party should not suffer and should not lose his valuable right in respect of 16 immovable properties. Taking into consideration the facts and circumstances of the present case, it can be held that, it is an exceptional case and occasioned by reason that, on account of the mistake committed by the counsel, the defendant No.9-petitioner shall not suffer. Therefore, the petitioner has to be provided an opportunity to file written statement subject to the costs.
13. After considering entire material on record and taking into consideration that the rights of the parties are involved in respect of immovable properties, this Court is of the considered opinion that this is an exceptional case occasioned by reasons beyond the control of 9th defendant and grave injustice would be occasioned if time is not extended to file written statement on account of mistake committed by the learned counsel engaged by the 9th defendant-petitioner. 17 Therefore, in the interest of justice the petitioner has to be provided an opportunity to file written statement by imposing costs of Rs.20,000/- payable to the plaintiffs.
14. For the reasons stated above, the point raised in the petition has to be answered in the negative holding that the trial Court is not justified in rejecting I.A. No.12 filed under Order-VIII Rule-1 of CPC seeking permission to file written statement by the 9th defendant.
15. In view of the aforesaid reasons, writ petition is allowed. The impugned order passed on I.A. No.12 in O.S. No.1792/2006 dated 19.10.2016 by the Principal Civil Judge, Senior Division, Bengaluru Rural District, Bengaluru is set aside. I.A. No.12 filed by the petitioner is allowed. The trial Court is directed to receive the written statement submitted along with the application, on payment of costs of Rs.20,000/- (Rupees: Twenty 18 Thousand Only) payable on the next date of hearing and the trial Court shall proceed with the suit.
16. Both the parties are directed to co-operate for the disposal of the suit and the trial Court shall expedite the suit, as early as possible, in accordance with law.
Sd/-
JUDGE SBS/-