S Chaya Devi vs Manjuramaswamy on 27 May, 2010

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Karnataka High Court

S Chaya Devi vs Manjuramaswamy on 27 May, 2010

5. Learned Senior Counsel would submit that only ground on which the trial court had application is on the ground of delay year 5 1/2 months from the daie""o'f'd.efenda.nts_3[a)7and 3(1)) came on record. He wou1d'.st1b_rr1it -delayé'l1a'd..L occasioned on account of a,e"rimina£--- .ease.'.=said to have been fiied by defendant hnsband at Hyderabad and she :%gé.tting the same transferred the Written staternent In support of his subrnissiorie: theddfollowing decisions:

1) J.C. cm1T:rER_.IE.E OTHERS vs. sum SR1 KISHAN TANDONANDANGTHER " . 2)'*'f.2§iRit'~si 983 scdtaszi . ANDHRA PRADESH AND ANOTHER vs. K.

3) .._Ii.R Kar 2459 AoV.'1f'URUSHOTAM vs. N.K. NAGARAJ A 412,008 AIR sow 2739

- .,_ZOLBA vs. KESHAO AND OTHERS

6. Per contra Srilvlanivannan, learned Coun__sel for the respondent would contend that of defendants 3(a) and 3(b) i.e., second:

defendant had not filed the WI:-§ttAen'stat«em.ent it she was denied the permission to I1'-le vvritt;3n"statementweV against which she had 'which was rejected by he would contend that What defendant did not possess' into service by the legal " a and as such he supported trial court and seeks for "petition. He would also rely upon. the lltdeeis-m'n in the Case of VIDYAWATI vs. MAN '' V' orniiiiis reported in AIR 1995 so Pg 1653 andlp' AND ANOTHER vs. KHIV RAJ AND oi"-m::1gs' .féported in Am 1998 RAJASTHAN Pg 98 in " " 'A : support of his submission. W

7. Having heard the learned Counsel for the parties and having perused the order passed by court, it is seen the ' groundzgon which triaivvhtitcroiﬁrrt had rejected the claim of defendants delay of 1 year 5 1/2 months anditaiso that defendant No.3[b) was ;na1eVVAn;ernT5er couid"

have filed the written...statern1eﬁt and cduld have been adopted by The 1-Ion'bIe Supreme Cotjrtin the oVf'~7zaLBAg trs. KESHAO AND OTHERS reported" 2339 has held to the fo11ow:ﬁg"i'erfé¢t: it A "R'/"--', and circumstances of presevnt'c_a.$e7 and the statements made in*the appI.ic_ation for condoning the delay in 'the written statement, we are not in a it ' hold that the appellant was not entittesditltofﬂe the written statement even after the. expiry of the period mentioned in the he proviso to Order 8 Rule 1 of the cpc. After reading the provisions, in particular the proviso to Order 8 Rule 1 are mandatory in M nature. In Salem Advocate Bar Association. Tamil Nadu vs. Union of India (AIR 3353), it has been clearly held "

provisions including the proviso to Rule 1 of the CPC are not directory. It has been ;?te1_:d decision that the delay canbe 3 and the written "'st:atement_ accepted even ;..r1ftery..the."ex'j)i.ry of 90 days from the date' summons in exceptionally hVas"also been held in"tligt."'Lz.se of the word "shalll' by itself is not- de'iern*iine whether the 'or directory. The use of t_he,Lvord ""sh.ali.'fVl'4is ordinarily indicative of _mand'at_ory. .nat'ure'":of the provision but having regard to lithe--eiecision in that case, the same b.e"construed as directory. In paragraph "said decision, this court observed as X foiio_u%s}-

use of the word 'shall' in Order 8 Rule 1 it by itself is not conclusive to determine V' whether the provision is mandatory or directory. We have to ascertain the object M which is required to be served by this provision and its design and context in it is enacted. The use of _ the word ordinarily indicative of mandatory the provision but having regarr.ito.'_"the1 in which it is used or intention of the legistation, same it construed as directorybi. ruiein. has to advance;--'the "_:o'_fji:.s;.tice 'hand not to defeat it. The made to advance the and not to defeaﬂgfit. the rule or justice and to be preferred.

_v»j»'pr:oeediire are hand--m.aid of justice and"i«ts"n.1istress. In the present V. _ context. the stric't':interpretation would defeat " jiistice. _____ .. e [Emphasis supplied by me) 8_..'7Tf;:i"s Court in the ease of A.V. PURUSHOTAM vs. N.K. reported in ILR 2003 Kar 2459 has held of the written statement within the period stipuiated under Order 8 Rule 1 is a "rule". Receiving "R"

11 avoid multiplicity of proceedings. Hence, this Court is of the considered View that cause defendant for non ﬁling of the written stateihent'. within the exceptional circuinsta1*1ce.spaif_id delay hy.'_itse1f if ' as held in Keshads case referre'd.Vto..siipra--viiotild bi:

fatal to receive the mrritten-._si:atenien.t.' the"

same, order passed vhy thep..tria.I'V._:'eoi::i_'t is iiabieto be set aside as it suffers from infirfmiity o_nfifa_ets'.and in law.

9. '1f1sie , thVejp--Vfesp'ohdent have relied upon vs. MAN MO.HAN referfepd to it has been held that what deceased-defenfdantl as right is the only right 'the legaivvﬂrepresentatives can urge when they » cerne The said fact is not in dispute. In the H 'instant'Vffiﬁsehyffvthough Sri.Mar1ivar1nan would contend that and third defendant had lost right to file written' statement by Virtue of the order passed in 'VW.15.No.10843/2003 dated 24.05.2003 that would not scuttle the right of the legal representatives to step into the shoes of the deceased and represent his estateiand defend their rights to that extent and not e The said principle enunciated cannot be a. to whether the legal representatives'a1'easetting'tip' independent right or not, is rnatter which l1feq_iiir-es topic» be considered by the trial considering the plea putforward in Hence, this Court is of theA'eensidered:'jrie1y::»ithat jndgment relied 11130" by fihfi? respondents is inapplicable':eitolgthe ofiitne'l case. Accordingly the order:z'pas'sed-- dated 12.11.2009 is heffby "aside;-- in View of the delay caused in filing th'e§vvritten..estateriient the defendants 3(a) and 303) shall pi-aintiff a sum of Rs.5,000/-- as costs and the he paid on the next date of hearing before the court and it shall be a condition precedent for it 'i.e_the..:Written statement being taken on record. aw

10. In the course of trial Court order it has observed in Para 8 that as per the directions gifticn by this court suit has to be disposed of 31.12.2010. In View of the same, folloWing.VV are given to the trial Court expeditiously dispose of the suit: ._ 1} ii]

iii) _ The defendant shall seekllanirlpladjvoumment and shall eoiopjerate ;;W'ith_'i..l'tiie> trial court in expeditious dispo of "

The any to ..l'Jev'fran'ied shall be framed weeks from the date of receipt o'f'jthe'wri»tt.en statement on record. isat Aliberty to lead further evidence if he so deSireS".».. .....

it it 'cVo'ir1pletion of the examination in chief and of the documents, the defendants shall be" entitled for cross--examination of plaintiffs Witnesses and complete the same within two weeks thereafter.

' " ..a11ovxfed.=.

V) On conclusion of plaintiffs evidence defendants are entitled to tender their evidence and their examination in chief within twofwveeksf' V' plaintiffs shall cross--exa.mine the if defendants' Within two Weeiss

11. On Conclusion of as stiijniated herein above, the argnments--._._s;ha1i'_¢: be suit shall be disposed of within 1V0' by the trial court.

Acco1»a:i;ig13}fiiinorderidatéd12%. 1 1.2009 {AnneXure--E) passeddin" o.s.:ﬁ§f.f'z;825.V{'1.9s;9 by XI Additional City Civil Judge, Baiigaiore-- Vfqsuashed and writ petition is Sd/--

JUDGE

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Karnataka High Court