IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 30TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.39101/2017(GM-CPC) BETWEEN:
SMT. CHANDRAKALA, AGED ABOUT 45 YEARS, W/O. VENUGOPAL, R/O. RAMOHALLI VILLAGE, REDDYPALYA, KENGERI HOBLI, BENGALURU SOUTH TALUK 560 060.
... PETITIONER (BY SRI JAGADEESH. P., ADVOCATE FOR SRI K. K. VASANTH, ADVOCATE) AND:
1. SMT. HANUMAKKA, AGED ABOUT 65 YEARS, W/O. KRISHNAPPA AND D/O. D. CHINNASWAMAPPA, R/O. BASAPURA VILLAGE, SINGASANDRA POST, HOSUR MAIN ROAD-560030.
2. SMT. ANJANAMMA, AGED ABOUT 60 YEARS, D/O. D. CHINNASWAMAPPA, R/O. GANIGARAPALYA, THALAGHATTAPURA POST, BENGALURU SOUTH TALUK-560062.
3. SRI. D. CHINNASWAMAPPA, AGED ABOUT 85 YEARS, S/O. LATE. DODDADEVEGOWDA, R/O. RAMOHALLI VILLAGE, REDDYPALYA, KENGERI HOBLI, BENGALURU SOUTH TALUK 560060.
4. SRI. R. C. GALAPPA, AGED ABOUT 60 YEARS, S/O. CHINNASWAMAPPA, R/O. RAMOHALLI VILLAGE, REDDYPALYA, KENGERI HOBLI, BENGALURU SOUTH TALUK 560060.
SRI. PUTTAPPA, SINCE DECEASED BY HIS LRS, 5. SMT. SAVITHRAMMA, AGED ABOUT 70 YEARS, W/O. LATE. PUTTAPPA, 6. SRI. SOMANNA AGED ABOUT 50 YEARS, S/O. LATE. PUTTAPPA, 7. SRI. CHANDRASHEKAR, AGED ABOUT 45 YEARS, S/O. LATE. PUTTAPPA, THE RESPONDENTS 5 TO 7 ARE R/O. RAMOHALLI VILLAGE, REDDYPALYA, KENGERI HOBLI, BENGALURU SOUTH TALUK 560060.
8. SMT. GIRIJAMMA, AGED ABOUT 40 YEARS, D/O. LATE. PUTTAPPA, 9. SRI. R. P. SOMASHEKHAR, AGED ABOUT 38 YEARS, S/O. LATE. PUTTAPPA, 10. SRI. R. P. CHANDRASHEKHAR, AGED ABOUT 36 YEARS, S/O. LATE PUTTAPPA, THE RESPONDENTS 8 TO 10 ARE R/O. RAMOHALLI VILLAGE, REDDYPALYA, KENGERI HOBLI, BENGALURU SOUTH TALUK 560060.
SRI. KRISHNAPPA SINCE DECEASED BY HIS LRS, 11). SMT. KUMARI, AGED ABOUT 50 YEARS, W/O. LATE. KRISHNAPPA, R/O. RAMOHALLI VILLAGE, REDDYPALYA, KENGERI HOBLI, BENGALURU SOUTH TALUK 560060.
... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE ORDER DATED 18.7.2017 PASSED ON I.A.4 IN O.S.1178/2002 BY THE PRINCIPAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU VIDE ANNEXURE-G AND CONSEQUENTLY ALLOW I.A.4.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The 7th defendant filed the present writ petition to quash the impugned order dated 18.7.2017 on I.A. No.4 made in O.S. No.1178/2002 on the file of the Prl. Senior Civil Judge, Bangalore rural district, Bangalore, dismissing the application filed under Section 151 of Code of Civil Procedure for permission to file the written statement after lapse of 14 years.
2. The Respondent Nos.1 and 2 who are the plaintiffs before the trial Court filed the suit for partition and separate possession in respect of the suit schedule property contending that the plaintiffs and defendant Nos.1 and 2 constitute Hindu undivided family and they have been in joint possession and enjoyment of the suit schedule property. It was also contended that there was no partition in the joint family and therefore filed the suit for the relief sought for. According to the learned counsel for the petitioner, none of the defendants filed any written statement.
3. After the issues were framed, when the matter was posted for evidence, at that stage, 7th defendant filed an application under Section 151 of Code of Civil Procedure to permit her to file the written statement contending that she had appeared before the Court through previous counsel at the instance of defendant Nos.3 to 5 and 8 and she had executed vakalath alongwith the other defendants. The defendant Nos.3 to 5 and 8 have undertaken to inform the hearing date of the case and to proceed with the matter on her behalf also and thereafter she had forgotten the pendency of the case due to her ill-health and family problems and subsequently defendant Nos.3 and 8 have also died and their legal representatives asked her about the pendency of the case. Thereafter she came to know that her earlier counsel has filed vakalath on 4.2.2003 and no written statement was filed. Therefore the application is filed for permission to file the written statement.
4. The plaintiffs filed objections to the said application and contended that the application filed by the 7th defendant seeking permission to file the written statement is not maintainable. The defendant No.7 has suppressed the facts and filed the said application after lapse of 14 years only to protract the proceedings. It is hopelessly barred by limitation and if the defendant No.7 is permitted to file the written statement at this stage, the plaintiffs will be put to great hardship and therefore sought to dismiss the application.
5. The trial Court considering the application and the objections by the impugned order dismissed the application mainly on the ground of delay. Hence the present writ petition is filed.
6. I have heard the learned counsel for the petitioner.
7. Sri Jagadish, learned counsel appearing for Sri K.K. Vasanth, learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the application for permission to file the written statement is erroneous and contrary to the material on record and the trial Court ought to have allowed the application and permitted the petitioner – defendant No.7 to file the written statement considering the fact that the rights of the parties are involved in respect of the immovable property. He would further contend that the petitioner due to ill-health and family problems was not able to contact her advocate and file the written statement and therefore he sought to quash the impugned order passed by the trial Court by allowing the writ petition.
8. In view of the aforesaid arguments advanced by the learned counsel for the petitioner, the only point that arises for consideration in the writ petition is :
“Whether the Trial Court is justified in dismissing the application filed by the 7th defendant under the provisions of section 151 of the code of civil procedure for permission to file written statement after lapse of 14 years from the date of the appearance in the facts and circumstances of the case?”
9. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the petitioner and perused the material on record carefully.
10. It is not in dispute that the suit was filed by the plaintiffs for the relief of partition and separate possession as long back as in the year 2002. Though the 7th defendant - petitioner appeared through her counsel and filed vakalath on 4.2.2003, the written statement was not filed and now after lapse of 14 years, the present application is filed for permission to file the written statement. The provisions of the order 8 Rule 1 of the code of civil procedure contemplates to file written statement within the stipulated period which reads under:
“O.8 R.1: Written statement-The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes:
As per S.16 of Act 4 of 2016, in its application to any suit in respect of a commercial dispute of a Specific Value, in Order VIII, in Rule 1, the proviso, the following proviso shall be substituted, namely:-
“Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record”. – [Vide Act 4 of 2016, S.16 and Sch. (w.e.f. 23.10.2015)].
11. A Plain reading of the provisions of Order 8 Rule 1 of Code of Civil Procedure makes it clear that the written statement should be filed within 30 days from the date of service or within the outer limit of 90 days. No doubt, it is true that the Hon’ble Supreme Court in the case of ZOLBA .vs. KESHAO reported in (2008)11 SCC 769 held that Order 8 Rule 1 of Code of Civil Procedure is not mandatory in nature and it would be open to the Court to permit the defendant to file his written statement if exceptional circumstances have been made out. But, admittedly in the present case, except stating that the 7th defendant was not well and has some family problems, she has not stated what are the exceptional circumstances that prevented her from not availing opportunity within the period as contemplated. In other words, even after lapse of 14 years, absolutely no proper explanation is forthcoming in the application for the delay in seeking permission to file the written statement except stating that she was not well.
12. The non-concern of the petitioner - defendant no.7 shown towards the proceedings of the Court for more than 14 years is absolutely manifest. The disregard shown by the defendant No.7 to the age of plaintiff Nos.1 and 2, who are aged about 65 and 60 years respectively, is also visible from the application filed by the defendant No.7 after lapse of 14 years for permission to file the written statement. A counsel appearing for the 7th defendant – petitioner has to have institutional responsibility. The Code of Civil Procedure so command. The defendant No.7 acted in manner to cause colossal insult to justice and to concept of speedy disposal of civil litigation. Timely delivery of justice keeps the faith ingrained and establishes sustained responsibility. Access to speedy justice is regarded a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of utopianism because such a thought is lightly to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice dispensation system should not be allowed to remotely conceive of a casual approach in the temple of justice as has been done in the present case by the 7th defendant who filed application for permission to file the written statement after lapse of 14 years.
13. The suit was filed for partition and separate possession. Though suit was filed in the year 2002, till 2017 defendant was not diligent in filing the written statement. At this stage if the defendant No.7 is permitted to file the written statement, the very purpose for which Code of Civil Procedure is mandated would be frustrated and further it is for the plaintiffs to establish their right in the suit for partition. For the reasons stated supra, the point raised in the writ petition is answered in the affirmative holding that the trial Court is justified in dismissing the application filed by the 7th defendant for permission to file the written statement.
14. In view of the aforesaid reasons, the impugned order passed by the trial Court is just and proper. Absolutely no ground is made out to interfere with the impugned order passed by the trial Court, exercising powers under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/-
Gss/- JUDGE