Karnataka High Court
The Special Deputy Commissioner vs Smt C P Prema Wife Of Sri N M Subbaiah on 17 September, 2012
Author: Ravi Malimath
Bench: Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
ON THE 17TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION No.2778/2011(GM-CPC)
BETWEEN:
THE SPECIAL DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT
D.C.COMPOUND, K.G.ROAD,
BANGALORE - 560 009.
... PETITIONER
(By Sri D.VIJAY KUMAR, AGA)
AND:
1. Smt C P PREMA,
W/O SRI N M SUBBAIAH
AGED ABOUT 55 YEARS
COORG COFFEE WORKS
NO. 208/1 AND 208/2,
KAGGADASAPURA MAIN ROAD,
C V RAMAN NAGAR POST,
BANGALORE - 560 092.
2
REPRESENTED BY HER PA HOLDER,
SRI N M SUBBAIAH
S/O LATE N S MUDDAIAH,
AGED ABOUT 57 YEARS.
2. THE DEPUTY INSPECTOR
GENERAL OF POLICE
BANGALORE METROPOLITAN
TASK FORCE,
N.R.SQUARE, BANGALORE - 560 002.
3. THE UNION OF INDIA
MINISTRY OF DEFENCE
NEW DELHI
REPRESENTED BY ITS SECRETARY
BANGALORE - 560 452.
4. THE ESTATE MANAGEMENT UNIT
D.R.D.O. TOWN SHIP
C.V. RAMAN NAGAR POST
BANGALORE - 560 093.
... RESPONDENTS
(R1 - SERVED (ABSENT);
R2 - SERVED (ABSENT);
Sri M K BOPAIAH, Adv. FOR R3 (ABSENT);
R4 - SERVED (ABSENT).
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITTUION OF INDIA PRAYING
TO QUASH THE ORDER DATED 19.6.2010 ON I.A.
FILED BY THE PETITIONER UNDER ORDER 9 RULE 7
OF CIVIL PROCEDURE CODE IN O.S. NO.4507 OF 2001
PASSED BY THE CITY CIVIL JUDGE, BANGALORE VIDE
ANNEXURE-E, AND CONSEQUENTLY, ALLOWED THE
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APPLICATION FILED BY THE PLAINTIFF UNDER ORDER
9 RULE 7 OF CPC.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The first respondent filed a suit against the petitioner and the remaining respondents seeking for a decree of permanent injunction to restrain them from demolishing the suit property without due process of law and for other consequential reliefs.
2. During the pendency of the suit, defendants 1 & 2 were placed exparte. An application was filed by the defendants under Order 9 Rule 7 of the Code of Civil Procedure seeking to recall the order to permit them to file the written statement. The Trial Court by the impugned order rejected the same. Hence, the present petition. 4
3. Sri. D.Vijay Kumar, learned Government Advocate submits that, sufficient cause has been shown in the affidavit to recall the order. That, placing the first and second defendants as exparte, would not lead to a just and fair disposal of the case. That, their written statement requires to be taken on record.
4. Respondent No.1 / plaintiff is served. She is represented by her husband and General Power of Attorney Holder Srri.N.M.Subbaiah. The office note would show that he has filed a statement of objections but it has been returned with office objections. The same is not complied with. Hence the same is not taken on record. Respondents 2 & 4 are served and unrepresented. Respondent No.3 is represented by counsel but the counsel is not present before the Court.
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5. The Trial Court while rejecting the application was of the view that the memorandum of facts shows absence of bonafides. That the delay is un-intentional. There is no reason to condone the delay and consequently, the application was rejected. The affidavit in support of the memorandum of facts under Order 9 Rule 7 of CPC has been considered by me. The memorandum of facts is signed by Sri.B.K.Janardhan, 1st Additional Government Pleader as on that date. He has stated that, defendants 1 & 2 were placed exparte and their absence is for bonafide reasons and it is not intentional. Therefore, the defendants pray to recall the exparte order. On considering the same, this Court was not satisfied with the memorandum of facts. Accordingly, in terms of the order dated 21.06.2012, this Court was of the view that it would be just and necessary to hear the said learned 6 Additional Government Pleader Sri.B.K.Janardhan. Accordingly, notice was issued to him. In pursuance whereof, he was present before the Court and by the order dated 09.07.2012, he sought for time to file an affidavit to explain his position. Accordingly, he has filed his affidavit.
6. I have perused the said affidavit. He has stated in his affidavit as follows:
"4. I respectfully submit that the petitioner herein is the 1st defendant before the suit was served with suit summons and placed exparte on 10.07.2001 and as per the instruction by the defendant Nos.1 & 2, the 1st defendant and I have filed an application with my memorandum of facts to recall the exparte order dated 10.07.2001 along with written statement on 20.07.2005 and the said application came to be dismissed on 19.06.2010 by the Court below holding that there is no valid and sufficient 7 reasons to condone the delay in filing the application and also there is no valid reasons to set aside the exparte order.
5. I respectfully submit that 1st defendant is only a formal party and it is acquired suit schedule property for the purpose of defence DRDO and the defendant Nos.3 & 4 are the actual beneficiaries and they are the contesting parties to the suit and they have filed written statement and they are actually contesting the suit. The role of the defendants No.1 & 2 is only to produce the documents relating the acquisition of proceedings and nothing else.
6. I respectfully submit that on the instruction of the 1st defendant - Special Deputy Commissioner, Bangalore District, Bangalore, I have appeared in the said suit, but the defendant has not given any particulars / reasons for the delay in filing the application to set aside the exparte order. I was under the impression and since this defendant is only a formal party and I 8 was not having any information or particulars furnished by the 1st defendant, I have filed a formal application to set aside the exparte order. Since the land was acquired in the year 1987 even the 1st defendant also not having much information about the case. However, with the bonafide and honest impression, I have filed an application to recall the exparte order without stating any facts and simply I have stated that the memorandum of fact that, "defendants 1 & 2 to the above case have been placed exparte and their absence is for the bonafide reasons and not intentional one", the Court below dismissed the said application holding that there is no sufficient reasons.
7. I submit that since the defendants 1 & 2 were also not having any particulars and they have not furnished anything to me to state the reasons in the affidavit. Hence, I have filed the formal application.9
8. I respectfully submit that, I was appointed as Additional Government Pleader in the year 2002 and I retired in the month of September 2011 and at present, I am not working as Additional Government Pleader before the Court below. Hence, I request this Hon'ble Court to consider the above explanation and allow the said writ petition, in the interest of justice and equity".
7. On considering the same, it would appear that there are bonafide reasons for the delay. The affidavit speaks of the detailed manner in which the delay has occurred, the position of defendants 1 & 2, the progress of the case and the nature of the dispute. It is specifically pleaded by defendants 1 & 2 that they are formal parties in as much as the land has been acquired on behalf of defendants 3 & 4. After having examined the same, I'am of the considered view that even though the reasons 10 assigned in the Memorandum of Facts filed in support of the application are not satisfactory, taking into consideration the affidavit filed by their counsel before this Court, it would indicate that the reasons assigned are just and proper and constitute sufficient cause. Even otherwise, the written statement filed by these defendants is just and necessary for the proper adjudication of the case. Under these circumstances, I'am of the considered view that the impugned order requires to be set aside by allowing the application.
8. Sri.Vijay Kumar, learned Government Advocate contends that, even though the suit is filed in the year 2005, the impugned order has been passed in the year 2010. Immediately thereafter, the present writ petition has been filed. Therefore, he pleads that no delay has been created by the 11 petitioner. However, he pleads that a time of three months should be sufficient for disposal of the case. In view of the submissions made, I'am of the considered view that, in view of the pendency of the suit from the year 2001, it is just and necessary to direct the Trial Court to hear and dispose off the suit by the end of January 2013.
9. For the aforesaid reasons, the order dated 19.06.2010 under Order 9 Rule 7 of the Code of Civil Procedure in O.S.No.4507/2001 passed by the City Civil Judge, Bangalore (Annexure - E) is set aside. Defendants 1 & 2 are permitted to file the written statement within a period of two weeks from the date of receipt of copy of this order. The Trial Court shall proceed with the disposal of the suit thereafter. The disposal of the suit shall be, by the end of January 2013.
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Ordered accordingly.
Sd/-
JUDGE dh*