IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.9241 OF 2015 (GM-CPC) BETWEEN:
1. G.V. ASWATHAPPA S/O LATE VENKATARAYAPPA AGED ABOUT 51 YEARS.
2. ANANTHA KUMAR S/O LATE VENKATARAYAPPA AGED ABOUT 45 YEARS.
BOTH ARE RESIDENTS OF "A" BLOCK, JAINARA BEEDHI GUDIBANDA TOWN GUDIBANDA TALUK CHICKBALLAPUR DIST-561 209.
(By Mr. SHARATH S. GOWDA, ADV.) AND:
1. VENKATACHALAPATHI S/O VENKATARAVANAPPA AGED ABOUT 37 YEARS.
2. SRINIVAS S/O VENKATARAVANAPPA AGED ABOUT 31 YEARS.
BOTH ARE RESIDENT OF "A" BLOCK, JAINARA BEEDHI GUDIBANDA TOWN … PETITIONERS GUDIBANDA TALUK CHICKBALLAPUR DIST-561209.
… RESPONDENTS (By Mr. G. BALAKRISHNA SHASTRY, ADV., FOR R1 & R2) - - -
This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash or set aside the order dated 9.2.2015 passed b the Hon’ble Civil Judge & JMFC, Gudibanda in O.S.No.140/2011 vide Ann-A and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following:-
ORDER Mr.Sharath S.Gowda, learned counsel for the petitioner.
Mr.G.Balakrishna Shastry, learned counsel for the respondent Nos.1 & 2.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 09.02.2015 by which the application preferred by the petitioner under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) seeking permission to file examination-in-chief by way of affidavit has been rejected.
4. Facts giving rise to the filing of the petition are that the respondent filed a suit seeking the relief of permanent injunction against the defendants on 24.10.2011. In the aforesaid civil suit, the petitioners entered appearance on 05.11.2011. The petitioners filed the examination-in-chief by way of an affidavit on 12.03.2013 in which a prayer was made for dismissal of the suit. The averments made in the written statement were admitted. After filing of the aforesaid examination-in-chief by way of affidavit, the written statement was field on 20.08.2013. Thus, at the time when the examination-in-chief was filed by the petitioners, the written statement was not even filed. However, it appears that inadvertently the aforesaid submission was made and on account of typographical error in the affidavit, a prayer was made for dismissal of the suit. Tue petitioners thereupon filed an application on 06.01.2015 seeking permission to withdraw the affidavit which was filed by them on 12.03.2013 and sought permission to file a fresh affidavit. The aforesaid application has been rejected by the Trial Court inter alia on the ground that once an affidavit is filed, as an evidence, the same cannot be taken away by the party by contending that he is not conversant with the language and the typist has committed the mistake.
5. Learned counsel for the petitioners submitted that the party should not be allowed to suffer on account of the advert of his counsel. He further submitted that in case the petitioner has not filed a fresh affidavit he would suffer irreparable loss. On the other hand, learned counsel for the respondent submitted that no explanation worth the name was conveyed by the petitioner have filed fresh affidavit. Therefore, the Court was left with no option but to reject the application.
6. I have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, at the time when the affidavit in the form of examination-in-chief was filed on 12.03.2013 the written statement was not on record. The written statement was subsequently filed on 28.08.2013. Therefore, there was no question of admitting the averment made in the written statement. On 12.03.2013, when the written statement was not even filed. The submission made in the affidavit that the civil suit had dismissed as apparently a matter of typographical error. Therefore, the Court had power under Section 151 of the Code to pass appropriate order in the peculiar fact situation of the case in the ends of justice. However, the aforesaid aspect of the matter has not been appreciated by the Trial Court while passing the impugned order. Accordingly, the impugned order is quashed and set and the application filed by the petitioner is allowed. The petitioner shall do the needful within a period of ten days from the date of receipt of certified copy of the order passed today and thereafter, the Trial Court shall proceed to decide the suit expeditiously in accordance with law.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS