IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S. DIXIT WRIT PETITION NOS.40330-40332 OF 2016 (GM-CPC) BETWEEN:
1. BHAVANI POOJARTHI, W/O LATE JAYA T POOJARI, AGED ABOUT 56 YEARS, R/A SRI GANESH, BEHIND POST OFFICE KADEKAR VILLAGE – 567101, UDUPI TALUK AND DISTRICT.
2. SMT SUREKA, D/O JAYA D POOJARI, W/O NITHYANANDA KIRODIAN, AGED ABOUT 36 YEARS, R/A NO.204, MAHALAKSHMI TOWER, MADA LAYOUT, OPP. R R EDUCATION TRUST, MULUND EAST, MUMBAI – 220110.
3. SUDARSHAN, S/O LATE JAYA T POOJARI, AGED ABOUT 34 YEARS, R/AT SRI GANESH, BEHIND POST OFFICE, KADEKAR VILLAGE – 567101, UDUPI TALUK AND DISTRICT. ... PETITIONERS (BY SRI K CHANDRASHEKAR ACHAR, ADVOCATE) AND:
1. SMT MEENAKSHI, W/O LATE JILLU R JATHANNA, AGED ABOUT 82 YEARS.
2. SMT SUMATHI, D/O LATE JILLU R JATHANNA, AGED ABOUT 50 YEARS.
3. SMT VEDA, D/O LATE JILLU R JATHANNA AGED ABOUT 49 YEARS.
4. SRI DAMODARA, S/O LATE JILLU R JATHANNA AGED ABOUT 47 YEARS.
5. SRI UDAYA S/O LATE JILLU R JATHANNA AGED ABOUT 45 YEARS.
6. SRI MADHWARAJ, S/O LATE JILLU R JATHANNA, AGED ABOUT 43 YEARS.
7. SMT MOHINI, D/O LATE JILLU R JATHANNA AGED ABOUT 41 YEARS, ALL ARE RESIDING AT ‘RAJAKRIPA’ PADUTHONSE VILLAGE, HOODE POST, UDUPI TALUK AND DISTRICT-567101.
... RESPONDENTS (BY SRI PRASANNA V R, ADVOCATE FOR R1 TO R3, R5 TO R7) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD:15.12.2015 PASSED IN R.A.NO.41/201, IA NO.8 ON THE FILE OF THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, UDUPI VIDE ANNEXURE-K.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The plaintiffs in O.S. No.119/2014 have filed writ petitions invoking writ jurisdiction of this Court for assailing the order dated 15.12.2015 made by the learned Principal Senior Civil Judge and CJM, Udupi, in respondents R.A. No.41/2014, whereby, the Written Statement filed along with application for condonation of delay and leave of the court, has been accepted, by allowing the said application.
2. After service of notice, the respondents have entered appearance and opposed the writ petitions.
3. The learned counsel for the petitioners submits that, the impugned order is not a reasoned order and therefore, the same is flaw-some in terms of the decision of the Hon’ble Apex Court in the case of M/s. SCG CONTRACTS INDIA PVT. LTD. VS. K.S. CHAMANKAR INFRASTRUCTURE PVT. LTD. & OTHERS, reported in 2019 SAR (Civil) 421.
4. Per contra, the learned counsel for the respondents/defendants submits that, the application filed for condonation of delay in filing the written statement, need not be elaborately reasoned and whatever the reason the lower appellate court has assigned is sufficient and it is more so, when it is a discretionary order. On the contrary, other side submits that in a suit for decree of possession of the property, if the defendants are not permitted to contest the same by filing written statement, it would cause enormous injustice/prejudice to them. Hence, he seeks dismissal of the writ petitions.
5. I have heard the learned counsel for the petitioners and the learned counsel for the respondents. I have perused the writ petition papers. I have also perused the ruling cited at the Bar. I am of the considered opinion that these petitions are liable to be dismissed for the following reasons:
a. The suit is for a decree of possession of the property and it was instituted on 25.02.2014; the respondents/defendants appeared before the court on 16.06.2014 and filed an application on 18.07.2014 for condonation of delay and for leave of the court for filing the Written Statement. The said application was dismissed on the same day.
b. After the dismissal of the said application, seeking leave of the court for filing Written Statement with delay, the respondents were denied opportunity of cross examining the petitioners/plaintiffs side, on the ground that the Written Statement has not been filed. This patent illegality vitiates the very proceedings themselves.
c. The lower appellate court has specifically stated as to why it is allowing the application of the respondents and accepting the Written Statement, with costs. It’s order reads as under:
“Perused the I.A. and the objections. I.As. filed by the appellant to receive the WS and the documents. This appeal is filed on the contention that appellant was not given sufficient time to prepare the WS. Since the respondent obtained decree it was strongly objected on the ground of the merit of the suit.
However appreciating the delay and in the ends of proper adjudication of suit, I pass the following:
IA – V for additional document kept pending and considered along with main matter.
IA – VI allowed with cost of Rs.1,000/-. WS will be received only on payment of the cost.”
d. It is settled legal position that the parties to the lis should have full opportunity of taking up their stand in the contested matters especially those involving heavy stakes. Discretion is exercised by the lower appellate court in accordance with reason and justice, and therefore there is no justification for the interference by this Court. The reliance cited at the bar in the case of M/s. SCG CONTRACTS INDIA PVT. LTD. VS. K.S. CHAMANKAR INFRASTRUCTURE PVT.
LTD. & OTHERS, reported in 2019 SAR (Civil) 421, does not much come to the assistance of the petitioners, since the delay in filing the written statement is not too long, unlike in that case.
6. In the above circumstances, these writ petitions stand dismissed being devoid of merits.
No costs.
Sd/- JUDGE SJ