IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO. 21210 OF 2017 BETWEEN:
M/s. DNR Corporation Pvt. Ltd., A Private limited company Incorporated under Companies Act, 1956 with O/a A–304, Queens Corner, Queens Road, Bengaluru – 560 001.
Represented by Managing Director Vipul Kumar.
(By Sri. Samartha S., Advocate) AND:
1. Sumalatha, D/o. V.M. Gidda Reddy, W/o. Ramachandra Reddy, Aged about 34 years, R/at Somapura Village, Sarjapur Hobli, Anekal Taluk, Bengaluru District – 571 121.
...Petitioner 2. Padmanabha Reddy, S/o. Late V.M. Lakshmaiah Reddy, Aged about 57 years, R/at Next to Venkataramanaswamy Temple, Agara Village, Begur Hobli, Bengaluru South Taluk, Bengaluru – 571 109.
3. Surya Narayana Reddy, S/o. late V.M. Lakshmaiah Reddy, Aged about 47 years, R/at Next to Venkataramanaswamy Temple, Agara Village, Begur Hobli, Bengaluru South Taluk, Bengaluru – 571 109.
4. Shivananda Reddy, S/o late V.M. Lakshmaiah Reddy, Aged about 42 years, R/at Next to Venkataramanaswamy Temple, Agara Village, Begur Hobli, Bengaluru South Taluk, Bengaluru – 571 109.
5. V.M. Gopal Reddy, S/o. Late Motappa Reddy, Aged about 74 years, R/at Vangalapalli Village, Beriganapalli Post, Hindupur District, Ananthpur District, Andhra Pradesh – 521 185.
6. V.M. Gidda Reddy, S/o. Late Motappa Reddy, Aged about 62 years, R/at Vengalapalli Village, Beeriganapalli Post, Hindupur District, Ananthpur District, Andhra Pradesh – 521 185.
7. Nanja Reddy, Husband of late Narayanamma, Aged about 77 years, R/at Vengalapalli Village, Beeriganapalli Post, Hindupur District, Ananthpur District, Andhra Pradesh – 521 185.
8. Narasimha Reddy, S/o. late Narayanamma, Aged about 67 years, R/at Vengalapalli Village, Beeriganapalli Post, Hindupur District, Ananthpur District, Andhra Pradesh – 521 185.
9. M/s. Accent Enterprises, A partnership Firm having O/at No.10/1, Ground Floor, Lakshminarayana Complex, Palace Road, Bengaluru – 560 052. Represented by its partners:
a) P. Ashwin Pai b) M.S. Mahadevaiah 10. K.N. Yellappa, S/o. late K.T. Narayanappa, Aged about 66 years, R/at Temple Street, K.R.Puram, Bengaluru – 560 036.
11. Sachin Kamath, S/o. G.N. Kamath, Aged about 48 years, R/at S – 1, Naveen Apartments, 13th Main, Vasanth Nagar, Bengaluru – 560 052.
12. M/s. Anushka Realty Inc., A Partnership Firm having its O/at No.100/1, City Centre, Opposite Town Hall, J.C. Road, Bengaluru – 560 002.
Represented by its Managing Partner: Avinash Amarlal.
... Respondents (By Sri. Anand Kumar A., Advocate for Sri. H.V. Ramachandra Reddy, Advocate for R1; Notice to R2 to R12 is dispensed with vide order Dated 05.07.2017) This Writ Petition is filed under Article 226 of the Constitution of India praying to set aside the order passed by Prl. City Civil & Sessions Judge, Bengaluru, vide order dated 10.04.2017 in O.S.No.726/2016 at Annexure – A and etc.
This Writ Petition coming on for Orders this day, the Court made the following:
O R D E R This writ petition is filed by defendant No.12 against the Order on I.A.No.3 dated 10.04.2017 made in O.S.No.726/2016 on the file of the Principal City Civil and Sessions Judge, Bengaluru, dismissing the application filed by defendant No.12 under Order IX Rule VII of Code of Civil Procedure for recalling the order dated 07.02.2017 taking the Written Statement as not filed and permit the defendant No.12 to file Written Statement.
2. The 1st respondent who is plaintiff in O.S.No.726/2016 filed the suit for partition and separate possession in respect of the suit schedule property, morefully described in the schedule and contended that the plaintiff and the defendants are members of the joint family and suit schedule property is joint family property and there was no partition. Therefore, she filed the suit. After issuance of summons, the present petitioner who is defendant No.12 was served on 17.10.2016 and he did not file written statement within the time stipulated. When the matter was posted on 10.04.2017, the defendant No.12 filed an application under Order IX Rule VII of Code of Civil Procedure to recall the order dated 07.02.2017 taking the written statement as not filed within the stipulated period. The Plaintiff has not filed objection to the said application.
3. The trial Court by impugned order dated 10.04.2017 dismissed the application mainly on the ground that, the petitioner/defendant No.12 was served on 17.10.2016 and 90 days was already over and that there is no question of extension of time beyond 90 days for filing written statement and that too the application neither accompanied with any written statement or documents. Hence, the present petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri. S. Samartha, learned counsel appearing for petitioner contended that the impugned order dismissing the application filed under Order IX Rule VII of Code of Civil Procedure praying to recall the order dated 07.02.2017 and permit the petitioner/defendant No.12 to file Written Statement, is erroneous and contrary to material on record. He further contended that the written statement was not filed within the time limit due to bonafide reasons. The trial Court ought to have considered the reasons stated in the application and allow the application. Since some of the defendants are not yet been served and the suit is only at the stage of serving summons to other defendants, no prejudice will be caused to the plaintiff if the application is allowed, permitting the petitioner/defendant No.12 to file written statement. The suit is filed for partition and separate possession. However, the said application was not opposed by the plaintiff. In spite of the same, trial Court proceeded to dismiss the application only on the ground that 90 days is already over. Therefore, he sought to allow the petition.
6. Per contra, Sri. Anand Kumar A. for Sri.H.V.Ramachandra Reddy, learned counsel appearing for contesting respondent No.1/plaintiff sought to justify the impugned order.
7. Having heard learned counsel appearing for both the parties, it is not in dispute that the 1st respondent who is plaintiff in O.S.No.726/2016 filed the suit for partition and separate possession in respect of the suit schedule property, morefully described in the schedule and contended that plaintiff and defendants are members of the joint family and suit schedule property is joint family property and plaintiff is entitled for share. It is not in dispute that the summons was served on 17.10.2016 and since the written statement was not filed, on 07.02.2017 it has been taken as nil and posted the matter for issue of summons to other defendants. On 10.04.2017 the defendant No.12 filed an application under Order IX Rule VII of Code of Civil Procedure accompanied by memorandum of facts stating that, when the case was posted for submission of Written Statement on 07.02.2017 there were number of Revenue documents to be obtained, which they could not obtain in time. Therefore, written statement was not filed. The non-filing of written statement within the time was on account of bonafide reasons and not intentional. Therefore, he sought to allow the application. The said application was not at all opposed by learned counsel appearing for plaintiff by filing any objections. The trial Court dismissed the application mainly on the ground that, petitioner/defendant No.12 was served on 17.10.2016. and statutory period of 90 days was already over and hence question of extending time beyond 90 days for filing written statement does not arise that too when the application is filed without written statement. The rights of the parties are involved in respect of suit schedule property cannot be deprived on technical ground. Though time is prescribed in suit to file written statement, but there is no bar to file written statement at a later stage if sufficient reasons are assigned for non-filing of written statement within time.
8. In the case of Zolba V. Keshao and others reported in (2008) 11 SCC 768, the Hon’ble Supreme Court while considering the provisions of Order VIII Rule 1 CPC held that it is only directory and not mandatory and there is no embargo on the power of the Courts to extend the time limit to file written statement beyond statutory limit. The suit is at the stage of issue of summons to other defendants. Merely allowing the application filed by defendant No.12 no prejudice will be caused to the plaintiff.
Ultimately purpose of the written statement serves only after adducing oral and documentary evidence. The impugned order is not a speaking order. Absolutely no reasons are assigned to dismiss the application filed under Order IX Rule VII of Code of Civil Procedure.
For the reasons stated above, the writ petition is allowed. The impugned order dated 10.04.2017 dismissing I.A.No.3/2017 filed by the petitioner/defendant No.12 under Order IX Rule VII of Code of Civil Procedure is hereby quashed.
I.A.No.3/2017 filed by the petitioner/defendant No.12 under Order IX Rule VII of Code of Civil Procedure is allowed.
The Order dated 07.10.2017 is recalled. Petitioner/defendant No.12 is permitted to file Written Statement before the trial Court and the trial Court shall receive the same and proceed with the suit in accordance with law.
With these observations writ petition is disposed of.
SD/- JUDGE SV