IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.31266/2016 (GM-CPC) Between:
Mr. G. Govindaraju S/o late Garudavahana Aged about 56 years Residing at 5th Cross Shakthinagar Doorvaninagar Post Bengaluru – 560 016. ... Petitioner (By Sri. S. Rajashekar, Advocate) And:
1. Smt. Lakshmamma @ Lakshmi W/o Apoli Aged about 56 years Residing at Gangawara Chowdappanahalli Channarayapatna Hobli Devanahalli Taluk – 562 110.
2. Smt. Shamanthaka Since deceased by her LRs 2a. Smt. R. Rekha D/o late Rahashekara Dikshith Aged about 35 years Residing at Sampangiramaswamy Temple Building, 16th Cross Cunningham Road, Vasanthanagar Opp. Police Quarters Bengaluru – 560 052.
2b. Smt. Roopa D/o late Rahashekara Dikshith Aged about 33 years Residing at Sampangiramaswamy Temple Building, 16th Cross Cunningham Road, Vasanthanagar Opp. Police Quarters Bengaluru – 560 052.
2c. Smt. Rashmi D/o late Rahashekara Dikshith Aged about 31 years Residing at Sampangiramaswamy Temple Building, 16th Cross Cunningham Road, Vasanthanagar Opp. Police Quarters Bengaluru – 560 052.
2d. Smt. R. Sushma D/o late Rahashekara Dikshith Aged about 29 years Residing at Sampangiramaswamy Temple Building, 16th Cross Cunningham Road, Vasanthanagar Opp. Police Quarters Bengaluru – 560 052.
3. Smt. Saraswathi S.
D/o late Subramanya Dixit Aged about 47 years Residing at Gangawara Chowdappanahalli Budigere Post Channarayapatna Hobli Devanahalli Taluk – 562 110. … Respondents (By Sri. H.N.Narendra Dev, Advocate for R1 Notice to R2 (a to d) & R3 is d/w v/o dtd. 04.10.2016) This Writ Petition is filed under Article 227 of the Constitution of India, praying to quash the order dated 07.04.2016 vide annexure-E passed by the Senior Civil Judge and JMFC., Devanahalli, in I.A.No.II in O.S.No.1969/2006.
This Writ Petition coming on for Orders, this day, the Court made the following:
O R D E R The petitioner herein who is defendant No.2 before the trial Court, has filed the present petition challenging the order of the trial Court dated 07.04.2016 passed on I.A.No.XI filed by defendant No.2 seeking permission to file the written statement, wherein, I.A.No.XI has been dismissed.
2. Respondent No.1 has filed O.S.No.417/1997 initially before the Court of the Civil Judge (Jr.Dn.), Devanahalli, seeking the relief of execution of sale deed by way of specific performance of the agreement of sale dated 10.08.1987. There were certain other reliefs sought for in the suit.
3. Initially, when the suit was pending before the Court of Civil Judge (Jr.Dn.) at Devanahalli, the petitioner herein who was also arrayed as the second defendant has filed his written statement on 16.12.2002. The written statement had adverted to the plaint averments and had also raised the question of lack of pecuniary jurisdiction of the Court.
4. It is to be noticed that the trial Court had directed return of the plaint while observing that it does not have pecuniary jurisdiction to try the suit as per the order dated 01.08.2006. Subsequently, the same plaint has been re-presented before the Court of Civil Judge (Sr.Dn.)., Devanahalli, whereby the said Court by its order dated 31.10.2013 has recorded that the written statement has not filed. It is thereafter that the second defendant on 03.11.2015 has filed an application seeking permission to file the written statement after condoning the delay. The said application had been objected to and the trial Court has rejected the said application by observing that there is no satisfactory explanation as regards to the delay of five years in not filing the written statement and that affidavit is vague and does not make out a case of exceptional circumstances as required to be made out for taking the written statement on record. It is further observed that the delay of five years is not a reasonable period.
5. Heard both the sides.
6. The contention of the petitioner is that the written statement was filed in the proceedings in O.S.No.417/1997, when it was pending before the Junior Civil Judge at Devanahalli. It is further submitted that upon re-presentation of the plaint, it was the impression of the second defendant that the written statement filed during the previous proceedings would be a part of the record and hence, no steps were taken to file the written statement afresh. It is contended that such bona fide impression ought to be taken note of and the same plaint without any substantial alteration being re-presented before the Court, the second defendant was merely seeking to file a fresh written statement taking substantially an identical defence. It was accordingly submitted that no prejudice as such would be caused to the respondents.
7. It is contended that between same parties, O.S.No.520/1998 is pending adjudication, wherein, the relief of declaration of title has been sought for and the case of the second defendant is also contained in the plaint in O.S.No.520/1998. It is further submitted that the proceedings in O.S.No.520/1998 are sought to be clubbed along with the present proceedings at the instance of the plaintiff and order has been passed clubbing both the said proceedings.
8. Learned counsel for the respondent herein would contended that an exceptional case requires to be made out for entertaining the application to file written statement after a period of 90 days and such an application ought not to be considered in a routine manner and relies on the observations of the Apex Court in the case of Atcom Technologies Limited Vs. Y.A.Chunawala and Co. and Ors. in Civil Appeal Nos.4266-4267 of 2018 D.D. 07.05.2018. Respondent No.1 has also relied on judgment of this Court in the case of Sri. Hanumantha Reddy and Smt. Seethamma Vs. Sri. K. Raghava Reddy and Ors. in W.P.Nos. 5393-5394/2011 D.D. 19.03.2013, wherein, it is held that applications filed to permit filing of written statement after the period prescribed is not to be allowed mechanically. The judgment of the Hon’ble Apex Court in the case of Mohammed Yusuf Vs. Faij Mohammad and Ors. in Civil Appeal No.7209 of 2008 (Arising out of S.L.P. (C) No.3311/2008) D.D.02.12.2008 is also relied to reiterate the contention that extension of time beyond 90 days was not automatic and was to be allowed only for reasons to be recorded after satisfaction that there was sufficient justification for filing of written statement by exceeding the time limit fixed. It is further contended that as on 31.10.2013, the second defendant was aware and notified as regards, the order that the written statement was not filed and hence, filing of the present application with delay of about two years subsequent thereto cannot be condoned without any sufficient reason explaining such delay.
9. It is to be noted that the written statement raising the first defence has been taken when the suit was pending before the Civil Judge (Jr.Dn.) at Devanahalli. No doubt, the presentation of the plaint afresh would result in a fresh proceedings and the second defendant was required to file a written statement but the fact that the defence had been taken at an earlier point of time is a matter to be kept in mind.
10. It is not in dispute that the suit for declaration pending between the same parties in O.S.No.520/1998 has been clubbed with the present proceedings and defendant No.2 is the plaintiff in the said suit and the pleadings and stand taken by defendant No.2 now is also reflected substantially in O.S.No.520/1998.
11. There is no dispute as regards the position in law that after the period of 90 days, special case is required to be made out by assigning reasons acceptable to the Court as to why written statement could not be filed within the time prescribed and also explaining the delay. However, while construing the aspect of delay in filing written statement, a pedantic technical approach cannot be adopted. The peculiar facts of the present case, being defence at an earlier point of time was taken. It is only after the plaint came to be rejected due to lack of pecuniary jurisdiction and upon re-presentation of the plaint, the written statement has been filed incorporating substantially the defence that was earlier taken. A suit for declaration in O.S.No.520/1998 is also pending between the parties and defence now sought to be taken is substantially the contention in the plaint in O.S.No.520/1998.
12. Taking note of the above said facts, while observing that there is delay in filing the written statement, the delay by itself cannot have the effect of defeating the exercise of discretion of the trial Court.
13. The notices were also issued in the declaration suit proceedings and the said proceedings are ordered to be tried along with the present proceedings. Taking note of the same, the case is made out by the circumstances and facts on record for the trail Court to exercise its discretion as per law by accepting the written statement. Taking note of the entirety of the facts and circumstances, no case is made out for interference with the order of the trial Court. However, the delay subsequent to 13.10.2013 deserves to be condoned by imposing costs. As noted above such delay in light of facts made out does not warrant rejection of the petitioners prayer. Accordingly, impugned order is set aside and the written statement is permitted to be taken on record.
14. The trial Court is directed to dispose of the suit expeditiously taking note of the Administrative Circular No.2/2017 dated 8.02.2017 and considering the seniority of the matters vis-a-vis the other pending matters.
The petitioner is however directed to pay costs of Rs.5,000/- to the respondent.
Accordingly, the writ petition is disposed of.
Sd/- JUDGE NR/-