Karnataka High Court
Shivalingappa Basavanna And Ors vs Somesh S/O Madivaylayya Hiremath And ... on 3 November, 2022
Author: R. Devdas
Bench: R. Devdas
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE R. DEVDAS
WRIT PETITION No.202808/2022 (GM-CPC)
BETWEEN:
1. SHIVALINGAPPA BASAVANNA
AGED ABOUT 65 YEARS,
OCC: AGRICULTURE
R/O KURIKOTA TQ. KAMALAPUR
DIST. KALABURAGI-585 313
2. SANGANNA
S/O MAHARUDRAPPA TILSHETTY
AGED ABOUT 63 YEARS,
OCC: RETD. GOVT. SERVANT,
R/O KURIKOTA, TQ. KAMALAPUR
DIST. KALABURAGI-585 313
3. SHIVANAND
S/O VEERABHADRAYYA MATHPATHI
AGED ABOUT 48 YEARS,
OCC: GRAM PANCHAYAT PDO,
R/O KURIKOTA, TQ. KAMALAPUR
DIST. KALABURAGI-585 313
4. BASAWARAJ
S/O SANGAPPA KALYANI
AGED ABOUT 56 YEARS,
OCC: AGRICULTURE,
R/O KURIKOTA, TQ. KAMALAPUR
DIST. KALABURAGI-585 313
2
5. NAGARAJ S/O CHANDRAKANTH MADIKAL
AGED ABOUT 41 YEARS,
OCC: AGRICULTURE,
R/O KURIKOTA, TQ. KAMALAPUR
DIST. KALABURAGI-585 313
6. SHARANABASAPPA
S/O SHANKARAPPA BASAVAN
AGED ABOUT 59 YEARS,
OCC: AGRICULTURE,
R/O KURIKOTA, TQ. KAMALAPUR
DIST. KALABURAGI-585 313
7. SIDDRAM
S/O GURUSHANTAPPA YUANI
AGED ABOUT 80 YEARS,
OCC: AGRICULTURE,
R/O KURIKOTA, TQ. KAMALAPUR
DIST. KALABURAGI-585 313
8. SHIVALINGAPPA
S/O VEERUPAKSHAPPA MALKHED
AGED ABOUT 65 YEARS,
OCC: PRIVATE SERVICE
R/O KURIKOTA, TQ. KAMALAPUR
DIST. KALABURAGI-585 313
9. SHARANABASAPPA
S/O BASVANAPPA CHIKNAGAON
AGED ABOUT 58 YEARS,
OCC: AGRICULTURE,
R/O KURIKOTA, TQ. KAMALAPUR
DIST. KALABURAGI-585 313
10. MALLIKARJUN BASAVAN
AGED ABOUT 66 YEARS,
OCC: RETD.GRAM PANCHAYAT SECRETARY,
R/O KURIKOTA, TQ. KAMALAPUR
DIST. KALABURAGI-585 313
... PETITIONERS
(BY SRI MANVENDRA REDDY, ADVOCATE)
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AND:
1. SOMESH S/O MADIVALAYYA HIREMATH
AGED ABOUT 16 YEARS, OCC: STUDENT
REP. BY HIS FATHER AND NEXT FRIEND
SRI MADIVALAYYA
S/O GIRIMALLAYYA HIREMATH
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE, R/O DADAMATTI,
TQ. AND DIST. KALABURAGI-585 313
2. THE CHIEF ENGINEER KNNL IPC
ZONE KALABURAGI-585 102
3. RAMESH S/O DUNDAPPA SHAANI
AGED ABOUT 60 YEARS,
OCC: AGRICULTURE, R/O KURIKOTA
TQ. KAMALAPUR
DIST. KALABURAGI-585 313
... RESPONDENTS
(BY SRI SRINIVAS S. SIDHAPURKAR,
ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI THEREBY
QUASHING / SET ASIDE THE IMPUGNED ORDERS ON I.A
NOS.V AND VI DATED 18.10.2022 PASSED BY THE I
ADDITIONAL SENIOR CIVIL JUDGE, KALABURAGI IN OS
NO. 247/2019 VIDE ANNEXURE- F, AND ALLOW IA NOS. V
AND VI.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
R. DEVDAS J., (ORAL):
Learned counsel, Sri Srinivas S. Sidhapurkar, has filed caveat petition on behalf of respondent No.1 who is the plaintiff before the Trial Court. In the considered opinion of this Court, there is no need to issue notice to respondent Nos.2 and 3 for the reasons stated below.
2. Plaintiff / respondent No.1 herein filed O.S.No.247/2019 seeking a declaration that the plaintiff is the owner of the suit schedule property; that the plaintiff is the Mathadhipati of Shivalingeshwar Mutt, Kurikota; the plaintiff being the Mathadhipati of Shivlingeshwar Mutt is entitled for compensation awarded in respect of the suit schedule property; a decree for perpetual injunction restraining the defendant Nos.1, 3 to 13 and all persons claiming under them from withdrawing the compensation 5 amount awarded in LAC No.1/2013 pending on the file of Principal Senior Civil Judge at Kalaburagi and for costs.
3. Learned counsel for the petitioners submits that second respondent, Chief Engineer, Karnataka Niravari Nigam Limited is a formal party since the second respondent is the beneficiary and the compensation has been deposited by the beneficiary. Respondent No.3 is one of the co-defendants who has not joined this writ petitioner.
4. Learned counsel for the petitioners submits that although there was a delay on the part of contesting defendants in filing written statement, nevertheless, the defendants filed I.A.V under Section 151 of Code of Civil Procedure seeking permission to file written statement on behalf of defendant Nos.4, 5 and 7 to 13 while seeking condonation of delay. I.A.VI 6 was also filed under Order VIII Rule 1(A) read with section 151 of Code of Civil Procedure seeking permission to produce the documents as per list encloses along with the application. Learned counsel submits that both the applications have been rejected by the Trial Court on the ground that the matter was posted for recording evidence of the plaintiff on 12.01.2020 and the evidence of PW.1 was recorded, the matter was heard and thereafter posted for judgment. Learned counsel submits that there were many judgments cited on behalf of the defendants including a decision of Hon'ble Division Bench of this Court rendered at Dharwad Bench in the case of Shri Nijamuddin and Another vs. Smt.Akhtarbegum and Others reported in ILR 2021 KAR 3297. Learned counsel submits that the Hon'ble Division Bench has clearly held that the Rules and procedures are hand maid for administration of justice. Valuable 7 rights under the code are not taken away by any of the Rules, law or procedure. In that case too, written statement was not filed by the defendants and the defendants were debarred from cross-examining the plaintiff and witnesses of the plaintiff. The Trial Court had proceeded to pass the judgment and decree in favour of the plaintiff. The Hon'ble Division Bench held that judgment and decree needs interference as the Trial Court had committed illegality and erred in not giving reasonable opportunity to the defendants. The matter was therefore, remitted back to the Trial Court for fresh consideration by setting aside the judgment and decree. Learned counsel therefore submits that in this case too, which is similarly situated to the case cited by the learned counsel, the defendants had infact submitted the written statement along with application and the Trial Court could have allowed the application by imposing costs on the defendants. At 8 any rate, the judicial precedents clearly held that reasonable opportunity should be given to the parties and the matter should be decided on merit and should not be decided on technicalities.
5. Per Contra, learned counsel for contesting respondent No.1 / plaintiff submits that the plaintiff had relied upon another Division Bench decision of this Court in the case of Rabiya Bi Kassim M. vs. The Country Wide Consumer Financial Service Limited, reported in ILR 2004 KAR 2215 wherein it was held that once the matter has been heard and posted for judgment, nothing is required to be done by the Court except to pronounce the judgment. Learned counsel submits that this decision cited by the plaintiff has been accepted by the trial Court and accordingly, the impugned orders have been passed.
6. At this juncture, learned counsel for the petitioners submits that a learned Single Judge of this Court distinguished the said decision of the Division Bench in the case of Rabiya Bi Kassim M. (supra) in 9 W.P.No.100013/2015 rendered at Dharwad Bench on 07.01.2015 and upheld the orders passed by the trial Court in permitting the defendants to file written statement. It was held that the trial Court by exercising discretionary power has permitted the defendant to file written statement in order to do substantial justice between the parties and exercise of discretionary powers would not be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. The decision of the Hon'ble Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India reported in (2005) 6 SCC 344 was noticed wherein it was held that the Court can extend time for filing written statement beyond 90 days if the exigencies so demand and as such to avoid further multiplicity of proceedings, trial Court has permitted the defendant to file written statement by imposing cost on the defendant.
7. Having heard the learned counsel and on perusing the petition papers, this Court is of the 10 considered opinion that taking into consideration the basic principles of law governing the provision contained in the Code of Civil Procedure for permitting the defendants to file written statement and to consider the matter on merits and having regard to the judgments cited by the learned counsel for the petitioner, this Court is of the considered opinion that the trial Court should have condoned the delay in filing written statement and should have accepted the written statement by imposing cost on the defendants. Similarly, the other application for production of documents should also be allowed when once the defendants are permitted to file their written statement.
8. Consequently, while allowing the writ petition, the impugned order dated 18.10.2022 passed on I.A.Nos.V and VI in O.S.No.247/2019 is hereby quashed and set aside.
9. As a result, both I.A.Nos.V and VI are allowed and the written statement submitted by the defendant Nos.3, 4, 5 and 7 to 13 along with I.A.No.V is directed to 11 be taken on record by the trial Court. However, the said defendants are directed to pay cost of Rs.5,000/- to the plaintiff. The cost shall be paid by the said defendants on the next date of hearing before the trial Court.
10. Similarly, I.A.No.VI is also allowed while permitting defendant Nos.3, 4, 5 and 7 to 13 to produce the documents as per the list enclosed with the application.
11. Having regard to the seriousness of the dispute raised in the suit and the predicament of contesting defendants, the learned I-Additional Senior Civil Judge at Kalaburagi is directed to consider and dispose of the matter in O.S.No.247/2019 as expeditiously as possible and at any rate within a period of one year from the date of receipt of copy of this order.
Ordered accordingly.
Sd/-
JUDGE VNR