IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.13443 OF 2017 (GM-CPC) AND WRIT PETITION NO.13442 OF 2017 (GM-CPC) BETWEEN:
1. M/S. KALASA ESTATE A REGISTERED PARTNERSHIP FIRM, HAVING CHICKMANGALUR DISTRICT, HAVING ITS REGISTERED ADMINISTRATIVE OFFICE AT NO.28, THIRUNAGAR COLONY, 4TH MAIN ROAD, EROD – 638 003. REPT BY ITS PARTNERS.
2. MR. S.O.SIVASUBRAMANIAM, S/O SHRI. N.S.S.SOCKALINGAM, AGED ABOUT 66 EYARS, THIRUNAGAR COLONY, 4TH MAIN ROAD, ERODE – 638 003.
3. MR. S.O.S.SOCKALINGAM, S/O S.O.SIVASUBRAMANIAM, AGED ABOUT 46 YEARS, THIRUNAGAR COLONY, 4TH MAIN ROAD, ERODE – 638 003. ... PETITIONERS (BY SRI. D.R.RAVISHANKAR, ADVOCATE) AND:
M/S. THE BOMBAY BURMAH TRADING CO. LTD. HAVING ITS PLANTATION HEAD OFFICE AT MUDIS PO – 642 117, COIMBATORE DISTRICT, TAMIL NADU. REPT BY ITS SENIOR MANAGER MR. A.A.PONNAPPA S/O LATE MR. A.P.APPANNA, AGE ABOUT 55 YEARS, R/A BOMBAY BURMAH TRADIN CO. LTD., ELKHILL ESTATES, POST BOX NO.12, SIDDAPUR P&T T.O.571 253.
KUDAGUT DISTRICT. ... RESPONDENT (BY MISS. NAYANATARA, ADVOCATE FOR SRI G.L.VISHWANATH, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED ON I.A.NO.3 IN O.S.NO.190/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AT VIRAJPET DTD. 28.2.2017 VIDE ANNEXURE-D AND ETC.
IN W.P.NO.13442/2017:
BETWEEN:
1. M/S. KALASA ESTATE A REGISTERED PARTNERSHIP FIRM, HAVING CHICKMANGALUR DISTRICT, HAVING ITS REGISTERED ADMINISTRATIVE OFFICE AT NO.28, THIRUNAGAR COLONY, 4TH MAIN ROAD, EROD – 638 003. REPT BY ITS PARTNERS.
2. MR. S.O.SIVASUBRAMANIAM, S/O SHRI. N.S.S.SOCKALINGAM, AGED ABOUT 66 EYARS, THIRUNAGAR COLONY, 4TH MAIN ROAD, ERODE – 638 003.
3. MR. S.O.S.SOCKALINGAM, S/O S.O.SIVASUBRAMANIAM, AGED ABOUT 46 YEARS, THIRUNAGAR COLONY, 4TH MAIN ROAD, ERODE – 638 003. ... PETITIONERS (BY SRI. D.R.RAVISHANKAR, ADVOCATE) AND:
M/S. THE BOMBAY BURMAH TRADING CO. LTD. HAVING ITS PLANTATION HEAD OFFICE AT MUDIS PO – 642 117, COIMBATORE DISTRICT, TAMIL NADU. REPT BY ITS SENIOR MANAGER MR. A.A.PONNAPPA S/O LATE MR. A.P.APPANNA, AGE ABOUT 55 YEARS, R/A BOMBAY BURMAH TRADIN CO. LTD., ELKHILL ESTATES, POST BOX NO.12, SIDDAPUR P&T T.O.571 253.
KUDAGUT DISTRICT. ... RESPONDENT (BY MISS. NAYANATARA, ADVOCATE FOR SRI G.L.VISHWANATH, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED ON I.A.NO.6 IN O.S.NO.154/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AT VIRAJPET DTD. 28.2.2017 VIDE ANNEXURE-C AND ETC.
THESE WRIT PETITIONS ARE COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the defendants in the money suits in O.S.No.190/2015 & 154/2015 are invoking the writ jurisdiction of this Court for assailing the orders both dated 28.02.2017 whereby their applications filed in IA No.6 under Section 151 of CPC, 1908 seeking leave to file the Written Statements belatedly having been rejected, leave is denied. Thus, virtually shutting their defence. After service of notice the respondent has appeared appearance through their Panel Counsel and filed the Statement of Objections resisting the writ petitions.
2. Having heard the learned counsel or the parties and having perused the petition papers, reprieve needs to be granted to the petitioners for the following reasons:
(a) the respondent in both the suits being the plaintiff seeks a money decree in huge sums; the trial has commenced is true; but it has not much advanced; there is some delay in filing the Written Statement is also true; however, petitioners have offered explanation in the form of an affidavit that accompanied their applications filed under Section 151 of CPC seeking leave to receive the Written Statements; the said application is plausible;
(b) ordinarily, the parties to the litigation should have full opportunity of taking up their stand by filing the pleadings and producing the evidence in support thereof; under the amended CPC, time frame is prescribed for the filing of Written Statement which the Courts are insisting upon strict compliance; ideally speaking, he Written Statement should be filed within the period prescribed under the Code; however, at times, the parties fail to do this and seek leave of the trial Courts to file them belatedly explaining the circumstances that resulted into delay being brooked; what the Courts have to see this whether there is a culpable delay and whether due diligence is lacking on the part of the defendant which again depend upon facts & circumstances of each case; and, (c) the petitioners being the defendants have brooked some delay in the filing of Written Statement is obvious;
however, the delay is not too long and its condonation would cause no prejudice to the respondent side, if made subject to cost & conditions; a converse position would result into virtually shunting out the possible defence that otherwise to the petitioners; this is not a happy thing to do; reliance of learned counsel for the respondent on the decision in CHANDRAKALA VS. HANUMAKKA, (2018) 2 KCCR 1124, does not come to the aid of the respondent inasmuch as in the said case, there was a delay of about fourteen years and the explanation offered was not found to be proper; except stating the ill-health, the defendant in the said case, had not produced any material.
In the above circumstances, these writ petitions succeed; a Writ of Certiorari issues quashing the impugned orders; petitioners’ subject applications having been favoured, they are permitted to file the Written Statements in both the suits; the learned trial judge shall take the steps accordingly.
The petitioners shall pay a cost of Rs.25,000/- in each of the suits to the respondent on or before the next date of hearing or within one month, whichever is later, failing which the impugned orders now quashed shall stand resurrected.
The learned trial Judge is requested to try & dispose off the subject suits as expeditiously as possible and in any circumstances, within a period of one year.
Sd/- JUDGE DS/Bsv