Karnataka High Court
Sri Kempegowda vs Smt Venkamma on 21 March, 2017
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH 2017.
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.41017/2016 (GM-CPC)
Between
Sri. Kempegowda
Son of late Nanjappa,
Aged about 59 years,
Residing at Neralehatta Village,
Kasaba Hobli, Doddaballapur Taluk,
Bangalore Rural District-562103.
... Petitioner
(By Sri : Abhinay Y T., Advocate)
And
1. Smt. Venkamma
Wife of late Ashwathanarayanappa,
Aged about 63 years,
Residing at Kuntanahalli Village,
Aralumallige post, Doddaballapur Taluk,
Bangalore Rural District. 562 103.
2. Smt. Shankunthala
Daughter of late Ashwathanarayanappa,
Aged about 37 years,
Residing at Gantiganahalli Village,
2
Singanayakanahalli Post,
Bangalore North Taluk,
Bangalore-560 004.
3. Smt. Veena
Daughter of late Ashwathanarayanappa,
Aged about 36 years,
Residing at # 547/2, A Block,
HPT road, Near park, Sahakar Nagar,
Bangalore-560 072.
4. Smt Manjula
Daughter of Late Ashwathanarayanappa,
Aged about 33 years,
5. Manjunatha
Son of Late Ashwathanarayanappa,
Aged about 32 years,
6. Ambika
Daughter of Late Ashwathanarayanappa,
Aged about 30 years,
Respondent No.4 to 6 are residing at
Kuntanahalli Village,
Aralumallige Post, Doddaballapur Taluk,
Bangalore Rural District-562103.
7. Rajanna
Son of late Nanjappa,
Aged about 73 years,
Residing at # 48/5,
CKG Engineering Works,
Kodigehalli, Bangalore North Taluk,
Bangalore-560004.
3
8. Smt. Venkamma
Wife of late Channakrishnappa,
Aged about 48 years,
Residing at Cheelenahalli village,
Tubagere Hobli, Doddaballapur Taluk
Bangalore Rural District-562103.
9. S. Munegowda
Son of late Sonnappa,
Aged about 58 years.
10. Smt. Akkayyamma
Wife of S. Munegowda
Aged about 53 years
Respondent No.9 & 10 are residing at
# 20, Hanumaiah layout,
Sanjaynagar, Bangalore-560094.
11. Jayamma
Wife of N. K. Vijaykumr
Aged about 58 years,
Residing at Neraleghatta village,
Kasaba Hobli, Doddaballapur taluk,
Bangalore Rural District-562103.
12. K. Sudhakar
Son of K. Koteshwara Rao,
Aged about 63 years,
Residing at #198,
Sanjay Nagar, Bangalore-560094.
13. B. Muniraju
Son of late Byrappa,
Aged about 56 years,
4
Residing at Kacheripalya,
Behind Police Quarters,
Doddaballapur-562103.
14. Smt. Bayyamma
Wife of late Seenappa,
Aged about 68 years,
Residing at Neralaghatta village,
Kasaba Hobli,
Doddaballapur Taluk-562103.
15. Smt Sudhamani
Wife of Prakash,
Aged about 52 years,
Residing at Gaddam Bachchahalli village,
Kasaba Hobli,
Doddabalapur Taluk-562103.
... Respondents
(By Sri.Gangadhar, Advocate for Respondent
Nos. 1 to 6 ;
Vide Order dated 11.08.2016 Respondent
Nos.7 to 15 are deleted)
This Writ Petition is filed under Articles 226 and
227 of Constitution of India, praying to quash the
orders dated 14.07.2016 passed in O.S.No.108/2008 on
the file of Senior Civil Judge, Doddaballapur on
I.A.No.11, annexure-E and consequently allow the
same.
This writ petition coming on for orders this day,
the court made the following:
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ORDER
The petitioner-defendant has filed the present writ petition against the order dated 14.07.2016 on I.A.No.11 made in O.S.No.108/2008 on the file of the Senior Civil Judge, Doddaballapur dismissing the application I.A.No.11 filed under Section 151 of Code of Civil Procedure for permission to file written statement.
2. The Respondents No.1 to 6 are the plaintiffs before the trial Court, filed suit for partition and separate possession contending that the suit schedule properties are joint family properties of the plaintiffs and defendants and there was no partition in the family. Therefore, the plaintiffs are entitled for 1/4th share in the suit schedule properties. Despite, the service of suit summons, though the defendants appeared through their Advocate on 16.04.2009 have not filed written statement within 30 days from the date of service i.e., on or before 16.05.2009. Inspite of granting sufficient 6 time, on 03.06.2010 the defendants have not filed written statement, therefore, the trial Court held that the written statement is taken as not filed.
3. When the matter was posted for plaintiffs evidence, at that stage, the defendants have filed application under Section 151 of Code of Civil Procedure for permission to file written statement contending that the defendant No.1 was illiterate and he was in search of the original documents, he could not able to secure the documents and thereafter, he applied for certified copies. Under these circumstances, there was delay in filing the written statement, was due to the bonafide reasons and not intentional. The said application was resisted by the plaintiffs by filing objections contending that the defendants are intentionally dragging matter for the last 8 years and have not filed written statement. Hence, the plaintiffs are sought for dismissal of the application. The trial Court considering the entire 7 materials on record, by the impugned order dated 14.07.2016 has dismissed the I.A.No.11. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri. Abhinay Y.T., learned counsel for the petitioner vehemently contended that the impugned order passed by the trial Court dismissing the I.A.Nos.11 is erroneous and contrary to the material on record. He further contended that the Order VIII Rule 1 of Code of Civil Procedure the amendment casts an obligation on the defendant to file written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to permit the defendants to file the 8 written statement. The provisions of Order VIII Rule 1 is not a mandatory but, it is only a directory. It is not part of substantive law. No party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, he sought to set aside the impugned order passed by the trial court by allowing the present writ petition.
6. Per contra, Sri. Gangadhara, learned counsel for the respondent Nos.1 to 6/plainiffs sought to justify the impugned order, strongly contending that there is a delay of more than 8 years in filing the written statement. In the affidavit absolutely there is no reasons assigned for the inordinate delay. Therefore, he sought for dismissal of the present writ petition.
7. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the writ petition is, 9 "Whether the impugned order passed by the trial Court dismissing the I.A.No.11 filed under Section 151 of Code of Civil Procedure seeking permission to file written statement is justified in the facts and circumstances of the present case?"
8. Having given my anxious consideration to the arguments advanced by the learned counsel for the parties, it is not in dispute that the plaintiffs have filed suit for partition and separate possession contending that the suit schedule properties are joint family properties and there was no partition in the family. Though there is a delay in filing the written statement, the defendants have filed application under Section 151 of Code of Civil Procedure explaining the cause for the delay and the relationship between the plaintiffs and defendants are not in dispute. The suit schedule properties are joint family properties are also not disputed by the parties. The only contentions of the 10 defendants that there was earlier partition. The rights of the parties are involved in respect of suit schedule properties consisting of 10 items situated at Neralaghatta village, Kasaba Hobli, Doddaballapur Taluk. The rights of the parties are involved in respect of the immovable properties. Though there is a delay, on the technicality, the Court should not denied an opportunity to the defendant to file written statement in support of his case.
9. Admittedly, in the present case, though there is a delay in filing of written statement for more than 8 years having filed the application along with affidavit explaining the cause for delay that he is innocent, he is not aware of the legal proceedings and legal matter and there was delay in searching of documents to produce in support of his case, ultimately he applied and obtained the certified copies. Merely because there is a delay in filing the written statement that cannot be a ground to 11 dismiss the application filed for permission. The trial Court ought to have given an opportunity to the defendants to file written statement by imposing reasonable costs.
10. 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 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 12 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 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 13 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 be demanded, depending on the facts and circumstances of a given case."
11. In view of the law declared by the Hon'ble Supreme Court, it is clear that the provisions of Order VIII Rule 1 of Code of Civil Procedure is not a mandatory, it is only a directory. The filing of the written statement is to expedite and not to scuttle the hearing. It does not impose an embargo on the power of 14 the Court to extend the time. The defendant has made out a case, the circumstances which are exceptional, occasioned by reason beyond the control of the defendant and grave injustice would be occasioned if the time to file written statement was not extended. Therefore, the application filed by the defendant is ought to be allowed. It is also clear that the defendant though the member of joint family dragged the matter for more than 8 years to file written statement and unnecessarily approached this Court by challenging the order passed by the trial Court for dismissing the permission to file written statement. Therefore, the defendants have to pay costs of the litigation to the plaintiffs upon dragging the proceedings from the year 2008 to 2011 for a sum of Rs.12,000/- (Rupees twelve thousand only) on the next date of hearing. 15
12. For the reasons stated above, the point raised in the writ petition has to be answered in the negative holding that the trial Court is not justified in dismissing the I.A.No.11.
13. In view of the above, the writ petition is allowed. The impugned order dated 14.07.2016 on I.A.No.11 made in O.S.No.108/2008 on the file of the Senior Civil Judge, Doddaballapur dismissing the application filed under Section 151 of Code of Civil Procedure is quashed.
The I.A.No.11 is allowed subject to payment of costs of Rs.12,000/- (Rupees twelve thousand only) payable by the defendants to the plaintiffs before the trial Court on the next date of hearing.
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Since, the matter is of the year 2008, the trial Court is requested to dispose of the suit as expeditiously as possible in accordance with law.
Sd/-
JUDGE DL