IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.45740/2017 (GM-CPC) BETWEEN:
SMT. MALLIKA S. SHETTY D/O. SHANKAR SHETTY, AGED ABOUT 40 YEARS, R/AT FLAT NO.003, GROUND FLOOR, B WING, DOMBIVILI WEST, THANE DISTRICT, MAHARASTRA STATE-421 20 (BY SRI.KETHAN KUMAR, ADVOCATE) AND:
1. SRI. MANOJ KUMAR S/O. SHEKAR SALIAN, AGED ABOUT 34 YEARS, R/AT DURGADAYA HOUSE, K.S.RAO NAGARA, KARNADU VILLAGE, MANGALORE TALUK, D.K.DISTRICT – 574 154 2. MRS. SANGEETHA SHETTY ADULT, R/AT PUNJABAILUGUTTU HOUSE, KOIKUDE, PAKSHIKERE, MANGALORE TALUK, D.K. – 575 156 ...PETITIONER ...RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD. 1.7.2017 PASSED ON IA NO.IV FILED IN O.S.NO.35/2016 PASSED BY THE COURT OF THE ITINERATE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MOODABIDRI, D.K. (PRODUCED AS ANNEXURE-A) AND CONSEQUENTLY REJECT THE IA NO.IF FILED BY THE R-1.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.Kethan Kumar, learned counsel appearing for petitioner. Perused the records.
2. Order dated 01.07.2017 allowing the application filed by first defendant under Section 151 CPC is assailed in this writ petition. First respondent herein has sought for permission to file written statement by enclosing the written statement to the application. Petitioner/plaintiff filed detailed statement of objections opposing the said application and contending that written statement was not filed within 30 days from the date of receipt of suit summons and cause shown by the first defendant should not be accepted. It is also contended that defendant was watching the proceedings without filing written statement and when plaintiff was tendering evidence an application came to be filed by defendant. As such trial Court has committed a serious error in permitting the defendant to file the written statement. It is also submitted by Sri.Kethan Kumar, learned counsel appearing for petitioner that defendants had filed false affidavit before the trial Court.
3. Having heard the learned counsel appearing for petitioner/plaintiff and on perusal of case papers it would disclose that trial Court after having perused the affidavit supporting the application and held that reason assigned by the defendant in not filing the written statement within prescribed time was on account of defendant was not in station. As rightly pointed out by trial Court, except vague statement made in the objections that defendant had been watching the proceedings and was not intentionally filing the written statement, it has been held that express denial of defendant being out of station had not been pleaded by plaintiff.
4. Be that as it may. In a suit filed for recovery of `60 Lakhs with interest filed by the writ petitioner/plaintiff against defendants i.e., respondent herein, the exercise of discretion by the trial Court to permit the defendant to file written statement and contest the case on merits cannot be found fault with. That apart, delay that has occurred and resultant inconvenience caused to plaintiff has been compensated by the trial Court by awarding costs, which would meet the ends of justice.
Hence, this Court does not find any good ground to entertain this writ petition. Accordingly, writ petition is hereby rejected.
Sd/- JUDGE DR