IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.30253/2018 (GM-CPC) AND WRIT PETITION NO.15495/2019 BETWEEN:
1. H.K.Narayanappa, D/o late Kempaiah @ Nerele Marada Pillappa, Aged about 35 years, R/at No.368, Near Karaga Temple, Hesargatta Village, Bengaluru North District, Bengaluru – 560 088.
Since deceased Represented by his Lrs.
a) Smt.Sharadamma, W/o late H.K.Narayanappa, Aged about 60 years, b) Sri.H.N.Srinivas, S/o late H.K.Narayanappa, Aged about 45 years, c) Sri.H.N.Ramesh, S/o late H.K.Narayanappa, Aged about 41 years, Petitioners No.1(a) to (c) are Resident of No.368, Near Karagada Temple, Hesargatta Village, Bengaluru North District, Bengaluru – 560 088.
d) Smt.H.N.Prema, W/o Keshavamurthy, D/o late H.K.Narayanappa, Aged about 43 years, Resident of Gondalli Farm, IHSR Post, Hesargatta, Bengaluru North Taluk – 560 088.
…PETITIONERS (By Sri.Venugopal M.S., Adv.) AND:
1. Sri.H.K.Kempasiddappa, S/o late Kempaiah @ Nerele Marada Pillappa, Aged about 73 years, Residing at No.370, Near Karaga Temple, Hesaragatta Village, Bengaluru North District, Bengaluru – 560 088.
2. Sri.H.K.Venkatesha, S/o late Kempaiah @ Nerele Marada Pillappa, Aged about 64 years, Residing at No.369, Near Karaga Temple, Hesaragatta Village, Bengaluru North District, Bengaluru – 560 088.
(By Sri.M.S.Harinath, Adv., for R1;
…RESPONDENTS Vide order dated 27.07.2018 notice to R2 is Dispensed with) These Writ Petitions are filed under Article 227 of the Constitution of India praying to set aside the orders dated 20.06.2018 and 09.07.2018 passed by the Senior Civil Judge, Bengaluru Rural District, Bengaluru in O.S.No.1229/2012 vide Annexure – D and etc., These Writ Petitions coming on for Orders, this day the Court made the following:
ORDER The petitioners have filed the present writ petitions against the Order dated 20.06.2018 passed by the Senior Civil Judge, Bengaluru Rural District, made in O.S. No.1229/2012, not accepting the written statement filed by legal representatives of defendant No.1 and Order dated 09.07.2018 rejecting permission for cross- examination of PW-1.
2. First respondent who is the plaintiff before the Trial Court filed O.S. No.1229/2012 for partition and separate possession in respect of suit schedule properties contending that the suit schedule properties are the joint properties of plaintiff and defendants and plaintiff is entitled for 1/3rd share. The defendants filed written statement denying the plaint averments. After contest, the suit came to be dismissed by a Judgment and Decree dated 16.11.2013. Aggrieved by the said Judgment and Decree, the plaintiff filed R.A. No.3/2016 before the IX Addl. Dist. and Sessions Judge, Bengaluru Rural District. The lower Appellate Court, considering the entire material on record, by a Judgment and Decree dated 31.03.2018 allowed the appeal as well as I.A. filed for condonation of delay with cost of Rs.5,000/- and remanded the matter to the Trial Court with a direction to proceed afresh after giving opportunity to both parties to put forth their case and also permit the legal representatives of defendant Nos.1 and 2 to file additional written statement if any, with cost of Rs.2,000/- each if intend to file, frame issues and decide the matter. A direction was issued to decide the suit in accordance with law and parties were directed to file written statement on the first date of appearance i.e. on 28.05.2018. Unfortunately, the present petitioners have filed their written statement only on 20.06.2018. Therefore the Trial Court did not accept the written statement on the ground that petitioners have not filed the written statement as per the direction issued by the lower Appellate Court. Thereafter petitioners have not chosen to file written statement. Accordingly, the Trial Court by order dated 09.07.2018, posted the matter for arguments by 16.07.2018. Hence, the present writ petitions are filed.
3. I have heard learned counsels appearing for the parties to the lis.
4. Sri Venugopal M.S., learned counsel for the petitioners contended that the impugned order passed by the court below rejecting the written statement filed by the petitioners and also not permitting cross-examination of PW-1 is erroneous, contrary to law. He further contended that lower Appellate Court fairly observed that there was no proper appreciation of material by the Trial Court and hence passed the impugned Judgment with a direction to the Trial Court to provide opportunity to all parties and proceed in accordance with law. Though the lower Appellate Court by Judgment and Decree dated 31.03.2018 directed the present petitioners to file written statement on the first day of appearance i.e. 28.05.2018, the same was not done due to bona fide reasons. Hence, the Trial Court ought to have accepted the written statement filed on the next date of hearing and proceeded with the matter. Therefore he sought to allow the writ petitions.
5. Per contra, Sri M.S. Harinath, learned counsel appearing for respondent No.1 sought to justify the impugned order and contended that as the suit was filed in the year 2012 and in pursuance of the direction issued by the lower Appellate Court on 31.03.2018, the present petitioners should have filed written statement on the first date of appearance i.e. on 28.05.2018. Since the petitioners have not obeyed the order passed by the lower Appellate Court, the Trial Court has rightly not accepted the written statement filed beyond prescribed date and hence, cross-examination of PW-1 was not permitted. Therefore the Trial Court was justified in closing the cross- examination of PW-1 by present petitioners on 09.07.2018. Therefore he sought to dismiss the writ petitions.
6. Having heard learned counsel for the parties, it is undisputed fact that the first respondent who is the plaintiff filed suit for partition and separate possession of the joint family properties, claiming 1/3rd share. Considering material on record and the written statement filed, the Trial Court dismissed the suit by Judgment and Decree dated 16.11.2013. On an appeal filed by the plaintiff, the lower Appellate Court by Judgment and Decree dated 31.03.2018 allowed the appeal and set aside the Judgment and Decree passed by the Trial Court and by imposing cost, permitted defendant Nos.1 and 2 to file written statement / additional written statement if any, on first date of appearance i.e. on 28.05.2018. In all fairness, the present petitioners who are legal representatives of first defendant should have filed written statement and proceeded to cross-examine PW-1 as the lower Appellate Court had provided opportunity. Instead of availing the opportunity, the petitioners filed written statement only on 20.06.2018 i.e. nearly one month thereafter. The Trial Court ought to have permitted the defendants to file written statement by imposing cost in order to avoid multiplicity of proceedings and delaying tactics and given an opportunity to cross-examine PW-1. Same has not been done by the Trial Court.
7. In the interest of justice, it would suffice to permit the petitioners to file written statement and direct the Trial Court to receive the same. Hence, the writ petitions are allowed. The impugned orders dated 20.06.2018 and 09.07.2018 passed by the Trial Court in O.S. No.1229/2012 are set aside.
The Trial Court is directed to receive the written statement filed on 20.06.2018 by the defendants and permit them to cross-examine PW-1 on 24.04.2019 subject to payment of cost of Rs.5,000/- payable by the present petitioners to respondent No.1 i.e. plaintiff before the Trial Court. Both parties are directed to appear before the Trial Court on 24.04.2019 without awaiting notice from the Trial Court.
Needless to observe that the Trial Court shall dispose off the suit at the earliest, subject to co-operation of the parties.
Sd/- JUDGE sac*