IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NOS.32321-32322 OF 2017 (GM-CPC) BETWEEN:
N. KUMAR S/O. LATE NANJAPPA, AGED ABOUT 69 YEARS, RESIDENT OF OLD POST OFFICE ROAD, SHIVAMOGGA CITY-577201.
(BY SRI P. N. HARISH, ADV.) ... PETITIONER AND:
SUSHEELAMMA W/O. LATE H. R. NANJUNDA SETTY, AGED ABOUT 77 YEARS, RESIDENT OF ‘NANJUNDESHWARA NILAYA’, 2ND CROSS, TILAKANAGARA, SHIVAMOGGA-577201, REPRESENTED BY G.P.A. HOLDER, H.R. SRINIVAS, S/O. LATE H. N. RAMASWAMY SETTY, AGED ABOUT 72 YEARS, RESIDENT OF 4TH CROSS, BASAVANAGUDI, SHIVAMOGGA CITY-577201.
... RESPONDENT (BY SRI G. S. CHIDAMBARA, ADV.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 28-6-2017 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND J.M.F.C., SHIVAMOGGA, IN O.S. NO.781 OF 2013 ON I.A. NOS.V & VI AT ANNEXURE-F AND THEREBY ALLOW I.A. NOS.V & VI FILED BY THE PETITIONER AS PER ANNEXURES - B AND C BY DIRECTING THE TRIAL COURT TO TAKE THE WRITTEN STATEMENT OF THE PETITIONER AT ANNEXURE - D IN O.S. NO.781 OF 2013 ON THE FILE OF LEARNED PRINCIPAL CIVIL JUDGE AND J.M.F.C., SHIVAMOGGA.
THESE WRIT PETITIONS ARE COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner, who is the defendant before the trial Court, has filed the present writ petitions against the order dated 28-6-2017 on I.A. Nos.V and VI made in O.S. No.781 of 2013 dismissing the applications filed for reopening the case and for permission to file the written statement.
2. The respondent, who is the plaintiff, filed suit for the relief of possession, for recovery of arrears of rent of Rs.43,200/- with interest at the rate of 18% per annum which amounts to Rs.11,976/- and for damages at the rate of Rs.20,000/- per month for unauthorised occupation of schedule premises from the date of institution of the suit till delivery of vacant possession. The plaintiff further contended that he is the absolute owner of the suit property having derived right over the same as a widow of Mr. H.R. Nanjunda Setty under succession. The defendant is the tenant, under the husband of the plaintiff, entered into a registered rent agreement dated 12-3-1986 which stood for twenty years commencing from 1-8-1986 to 31-7-2006. Thereafter, the rent was enhanced from Rs.400-600-800 and ultimately to Rs.1,200/- per month. The husband of the plaintiff died on 12-12-1999. Subsequent to his death, the defendent continued tenancy of the suit property under the plaintiff. It is further contended that the defendant is a chronic defaulter in the matter of paying rents. In spite of repeated requests, he has not paid the rents, nor vacated the suit property. Hence, the plaintiff filed a suit for recovery of arrears.
3. In spite of granting time, the defendant has not filed the written statement and the matter was posted for final arguments. At that stage, the defendant filed two applications, namely I.A. No.V under Section 151 of the Code of Civil Procedure, 1908, to reopen the case and permit him to file the written statement and I.A. No.VI under Order XVIII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908, for permission to file the written statement to contest the suit on merit contending that after service of summons, he has engaged the services of a counsel to represent him in the suit, but the learned counsel has failed to file the written statement as the defendant was severely ill and has undergone major surgery and taking up follow-up treatment in Bengaluru. The non-filing of written statement was purely for bonafide reasons as he was seriously ill. On the other hand, the plaintiff has denied the averments made in the applications and contended that the only intention of the defendant is to drag the matter as far as possible and not paying the rents regularly. Hence, sought for dismissal of the applications. The trial Court after consideration of the applications and objections, by the impugned order dated 28-6-2017, rejected I.A. Nos.V and VI. Hence, the present writ petitions are filed.
4. I have heard the learned counsel for the parties to the lis.
5. Mr. P.N. Harish, the learned counsel for the petitioner, contended that the impugned order passed by the trial Court rejecting the applications for reopening and permission to file the written statement is erroneous contrary to the material on record. He further contended that non-filing of written statement in time was purely for bonafide reasons that the defendant was seriously ill and not in a position to move about and Doctor has advised him to take complete rest, avoid climbing staircase, walking for 10 to 15 meters except toileting. Therefore, there was a delay and the trial Court ought to have given an opportunity to file the written statement. Therefore, he sought to quash the impugned order.
6. Per contra, Mr. Chidambara, the learned counsel for the respondent – landlord, sought to justify the impugned order and contended that though the suit is filed in the year 2013, till 2016, the defendant has not filed any written statement, nor shown any interest in the Court proceedings. It is nothing but delayed tactics and not paying the rents regularly. He sought for dismissal of the writ petitions.
7. Having heard the learned counsel for the parties, it is not in dispute that the respondent – landlord has filed suit for the relief of possession against the defendant. The same is disputed by the present petitioner contending that the plaintiff has no locus standi. The facts remains whether the plaintiff has locus standi or not shall be decided after adjudication. The defendant is not co- operating with the Court and dragging the case by non- filing the written statement even after more than three years. The only ground urged in the present writ petitions is that the defendant has underwent major surgery and could not file the written statement in time. Taking into consideration, that the defendant was seriously ill, an opportunity should be given, subject to payment of cost for the delayed period so as to compensate the landlord with a condition that on the next date of hearing, the defendant to proceed with the cross- examination of P.W.1 and to lead his evidence, if any.
8. Taking into consideration the totality of the present case, this Court is of the opinion that an opportunity should be given to the defendant to file the written statement and to contest the suit on merits.
9. For the reasons stated above, the writ petitions are allowed. The impugned order passed by the trial Court dated 28-6-2017 on I.A. Nos.V and VI made in O.S. No.781 of 2013 is quashed. I.A. Nos.V and VI filed by the defendant for reopening the case and for permission to file the written statement are allowed, subject to payment of Rs.10,000/- (Rupees Ten thousand only) payable by the defendant to the plaintiff, before the trial Court, on the next date of hearing. The trial Court is directed to take the written statement already filed on record, permit the defendant to proceed with the cross-examination of P.W.1 within one or two days, and to lead evidence on
proceedings. The trial Court shall expedite the suit, subject to co-operation between the parties.
Sd/- JUDGE kvk