Karnataka High Court
M. Srinivasareddy vs M.N. Vishwanath on 13 December, 2022
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
WP 35710/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
W.P.No.35710/2016 (GM-CPC)
BETWEEN:
M. SRINIVASAREDDY
AGED ABOUT 65 YEARS
W/O LATE MUNISHAMI REDDY
RESIDING: OPPOSITE TO
1ST CROSS, HOODI VILLAGE
ITPL MAIN ROAD
MAHADEVAPURA POST
BENGALURU - 560 048. ... PETITIONER
(BY SRI S.K. ACHARYA, ADV.)
AND:
1. M.N. VISHWANATH
S/O SRI M.V.NANJA REDDY
& SMT. NEELAMMA
AGED ABOUT 37 YEARS
R/AT NO.229, SRI VIGNESHWARA
NILAYA, HOODI VILLAGE
ITPL MAIN ROAD, MAHEVAPURA POST
BENGALURU - 560 048.
2. SMT. SARASWATHAMMA
AGED ABOUT 62 YEARS
W/O SRI KRISHNAREDDY
& D/O LATE MUNISHAMI REDDY
R/O HOODI VILLAGE, K.R. PURAM
HOBLI, MAHADEVAPURA POST
BENGALURU EAST TALUK
BENGALURU - 560 048.
3. SRI M.N. VIJAY
S/O SRI.NANJA REDDY
& SMT. NEELAMMA
WP 35710/2016
2
AGED ABOUOT 30 YEARS
R/AT NO. 229, SRI. VIGNESSHWARA
NILAYA, HOODI VILLAGE, ITPL MAIN
ROAD, MAHADEVAPURA POST
BENGALURU - 560 048.
4. SMT. VEENA
W/O SRI K.S. PILLAPPA
AGED ABOUT 33 YEARS
R/AT SUBBANNA LAYOUOT
OM SHAKTHI TEMPLE ROAD
HOODI VILLAGE, MAHADEVAPURA
POST, BENGALURU - 560 048.
5. SRI H.M. GOPALA REDDY
S/O LATE SRI. MUNISHAMI REDDY
AGED ABOUT 58 YEARS
R/AT NO. 189, IST CROSS, HOODI
VILLAGE, ITPL MAIN ROAD
MAHADEVAPURA POST
BENGALURU - 560 048.
6. SMT. CHINNAMMA
D/O LATE SRI MUNISHAMI REDDY
AGED ABOUT 75 YEARS
R/AT NO.189, IST CROSS, HOODI
VILLAGE, IRPL MAIN ROAD
MAHADEVAPURA POST
BENGALURU - 560 048.
7. SMT. LAKSHMAMMA
W/O SRI RAMAREDDY
D/O LATE SRI MUNISHAMI REDDY
AGED ABOUT 60 YEARS
R/AT MUTHSANDRA VILLAGE
VARTHUR POST, BENGALURU.
8. SMT. NEELAMMA
W/O SRI M.V. NANJA REDDY
& SMT. NEELAMMA
AGED ABOUT 37 YEARS
R/A NO. 229, SRI VIGNESHWARA
NILAYA, HOODI VILLAGE, ITPL MAIN
ROAD, MAHADEVAPURA POST
BENGALURU - 560 048.
WP 35710/2016
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9. SMT. KANTHAMMA
D/O LATE SRI. MUNISHAMI REDDY
AGED ABOUT 50 YEARS
R/AT NO. 189, GROUND FLOOR
IST CROSS, HOODI VILLAGE
ITPL MAIN ROAD, MAHADEVAPURA
POST, BENGALURU - 560 048. ... RESPONDENTS
(BY SRI GIRISH CHNDRA N., ADV., FOR R-1;
R-2 TO R-9 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 30.03.2016 PASSED IN I.A.NO.II
IN O.S.NO.4065/2013 ON THE FILE OF THE XX ADDITIONAL
CITY CIVL AND SESSIONS JUDGE, BENGALURU VIDE ANNX-
A.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. This writ petition under Article 227 of the Constitution of India is filed assailing the order dated 30.03.2016 passed on IA no.2 in O.S.No.4065/2013 by the XX Addl. City Civil & Sessions Judge, Bengaluru.
2. Heard the learned Counsel for the petitioner and also perused the material available on record.
3. Brief facts of the case that would be necessary for the purpose of disposal of this petition are, respondent nos.1 WP 35710/2016 4 to 4 herein had filed O.S.No.4065/2013 before the Trial Court seeking the relief of partition and separate possession. In the said suit, the petitioner who was arrayed as defendant no.1 was served with the suit summons and when the suit was posted for the purpose of recording plaintiffs evidence, he had filed his written statement and also had filed IA no.2 under Section 151 CPC seeking permission of the Trial Court to file the written statement. The said application was opposed by the plaintiffs. The Trial Court vide the order impugned has dismissed the application and consequently has rejected the written statement. Being aggrieved by the said order, the petitioner is before this Court.
4. Learned Counsel for the petitioner submits that the trial in the suit had not yet commenced and the service of suit summons was also completed in the year 2015, and therefore, though there is delay in filing the written statement, the same will not adversely affect the plaintiffs, and therefore, the Trial Court was not justified in rejecting IA no.2.
WP 35710/20165
5. The plaintiffs have filed the suit seeking for the relief of partition and separate possession of the suit schedule property. The order sheet maintained by the Trial Court which is available on record would go to show that service of notice in the said suit was completed only on 04.12.2015 and on the said date, the Trial Court had adjourned the suit to 01.02.2016 for plaintiffs evidence. On 01.02.2016, the petitioner herein had filed the written statement along with IA no.2 under Section 151 CPC. Therefore, as rightly contended by the learned Counsel for the petitioner, though there is delay in filing the written statement, after defendant no.1 has entered appearance, the material on record would go to show that service of notice on all the other defendants was not completed and the same was completed only on 04.12.2015 and on the next date of hearing itself i.e., on 01.12.2016, the petitioner herein had filed his written statement. Under the circumstances, the Trial Court was not justified in rejecting IA no.2 filed by the petitioner seeking permission of the Trial Court to file his written statement. WP 35710/2016 6
6. However, the fact remains that there has been a delay of nearly 600 days in filing the written statement after defendant no.1 had entered appearance before the Trial Court. Therefore, the prayer made in IA no.2 is required to be allowed by imposing costs on the petitioner. Accordingly, the following order:
7. The writ petition is allowed. The order dated 30.03.2016 passed on IA no.2 in O.S.No.4065/2013 by the Trial Court is set aside. IA no.2 is allowed. The Trial Court is directed to receive the written statement on record subject to the petitioner paying a sum of Rs.6,000/- as costs to the plaintiffs before the Trial Court on the next date of hearing, and thereafter proceed in accordance with law.
Sd/-
JUDGE KK