IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 31909 OF 2017 (GM-CPC) BETWEEN:
CHAMAN SHARIEF S/O HUSSAIN SAB AGED ABOUT 51 YEARS, R/O SITE NO.7, SY NO.105, SULEBYLU VILLAGE SHIVAMOGGA TALUK & DISTRICT 577201 … PETITIONER (BY SRI. P N HARISH, ADVOCATE) AND:
1. K MANJUNATH S/O K KRISHNAPPA AGED ABOUT 54 YEARS, R/O B R GOVINDARAJ SETTY COMPOUND B B STREET, SHIVAMOGGA 577201 2. FATHIMA W/O LATE HUSSAIN SAB AGED ABOUT 48 YEARS, 3. RAJIK KHAN S/O LATE HUSSAIN SAB, AGED ABOUT 30 YEARS, 4. MOHAMMED ALEEM S/O LATE HUSSAIN SAB, AGED ABOUT 30 YEARS, 5. MUJEEB S/O REHAMAN SAB MAJOR IN AGE R2 TO 5 ARE RESIDING AT 15TH WARD, SITE NO.7, SY NO.105, SULEBYLU VILLAGE, SHIVAMOGGA TALUK & DISTRICT 577201 6. RAHAMAN S/O LATE WAJEED AGED ABOUT 38 YEARS, R/O 4TH CROSS, URGADUR SY NO.105, SITE NO.7, SULEBYLU VILLAGE, SHIVAMOGGA TALUK & DISTRICT 577201.
… RESPONDENTS (BY SRI. S V PRAKASH, ADVOCATE FOR R1; NOTICE TO R2-6 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26.4.2017 PASSED BY LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, SHIVAMOGGA IN O.S.NO.573/1992 VIDE ANNEX-D BY DIRECTING TO ACCEPT THE ADDITIONAL WRITTEN STATEMENT FILED BY THE PETITIONER AS PER ANNEX-C.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the second defendant in a declaratory suit filed by the first respondent herein in O.S.No.573/1992 is invoking the writ jurisdiction of this Court for assailing the order dated 26.04.2017, a copy whereof is at Annexure-D, whereby the learned Principal Civil Judge, Shivamogga, has refused to take on record his Additional Written Statement and further, has posted the matter for cross-examination of PW.1 on cost of Rs.200/-. The first respondent – plaintiff having entered through his counsel, resists the writ petition, notice to other respondents having been dispensed with.
2. Having heard the learned counsel for the parties and having perused the writ petition papers, this Court is of the considered opinion that relief needs to be granted to the petitioner because:
(a) suit of the first respondent – plaintiff is for a decree of declaration of title and for mandatory injunction; it is more than a quarter century old; the suit was resisted by filing the Written Statement by the deceased father of the respondents; subsequently, suit is amended by filing the Amended Plaint; thus, the defendant has right to file Additional Written Statement;
(b) the version of the Court below that the Written Statement was not filed is factually incorrect since the deceased father had filed one; even otherwise also, when a plaint is amended, the defendant has right to file Additional Written Statement at least to the amended version of the plaint, regardless of the nomenclature i.e., Additional Written Statement or Written Statement; an argument to the contrary, falls foul of law and smacks of justice; and, (c) the reasoning of the Court below that for filing of the Additional Written Statement, there should be a Written Statement already on record does not gain acceptance; for illustration, if the plaint as originally presented, has an innocuous prayer and therefore the defendants choose not to file the Written Statement; later, plaint is amended by introducing huge prayers; going by the logic of the Court below, there cannot be any Written Statement even to the amended plaint; this spurns at logic, at law & at reason.
In the above circumstances, this writ petition succeeds; impugned order is set at naught; the trial judge shall accept the Additional Written Statement filed by the petitioner on record; the cost levied by the impugned order for adjourning the case is also set aside.
Since, the suit is more than a quarter century old, the learned trial judge is requested, to try & dispose off the same within a period of nine months and report compliance to the Registrar General of this Court.
No costs.
Sd/- JUDGE Bsv