IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH , 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.49539/2018(GM-CPC) BETWEEN:
SMT. PRAMILA, W/O NANJAIAH AGED ABOUT 41 YEARS RESIDING AT NO 25, OPP KIRAN ENGLISH MEDIUM SCHOOL 2ND CROSS, DODANNA INDUSTRIAL AREA ROAD, HEGGANAHALLI, VISHWANEEDAM POST BANGALORE – 560091.
NOW RESIDING AT NO 89, 2ND CROSS, BEHIND ANUPAMA SCHOOL, SAI BABA NAGAR, ANDHRAHALLI MAIN ROAD, BANGALORE – 560091.
... PETITIONER (BY SRI SHARATH S. GOWDA, ADVOCATE) AND:
1. SRI BHADRAIAH, S/O VEERABHADRAIAH AGED ABOUT 68 YEARS, RESIDING AT NO.22, 2ND CROSS, 1ST MAIN, GANGADHARA LAYOUT, GOVINDARAJANAGAR VIJAYANAGAR, BANGALORE – 560091.
2. SMT. RADHA, W/O L. SHIVALINGAIAH, AGED ABOUT 40 YEARS, RESIDING AT NO 220, CHANNAPPA BUILDING HEGGANAHALLI, VISHWANEEDAM POST, BANGALORE – 560091.
... RESPONDENTS (R1 IS SERVED BUT UNREPRESENTED;
VIDE ORDER DATED 07.03.2019 NOTICE R2 IS DISPENSED WITH) **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 11.09.2018 PASSED IN O.S.NO.5552/2012 BY XVII ADITIONAL CITY CIVIL JUDGE [CCH-16] ON I.A.NO.9, VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The 1st defendant filed the present writ petition against the order dated 11.9.2018 on I.A. No.9 made in O.S. No.5552/2012 dismissing the application filed by the 1st defendant under Section 151 of the Code of Civil Procedure to file the written statement.
2. The 1st respondent who is the plaintiff before the trial Court filed O.S. No.5552/2012 for specific performance against the present petitioner/defendant No.1 and respondent No.2/defendant NO.2 to enforce the agreement dated 25.4.2012. Both the defendants have not contested the suit. The 2nd defendant was placed exparte on 8.10.2012 and ultimately the exparte decree came to be passed on 27.4.2013.
3. Against the said Judgment & Decree, the 2nd defendant who is the purchaser from the 1st defendant under the registered sale deed dated 2.7.2012 filed Miscellaneous Petition No.485/2013 to set aside the exparte Judgment & Decree passed by the trial Court. The learned Addl. City Civil & Sessions Judge, Bangalore considering both the oral and documentary evidence on record by an order dated 28.6.2016 allowed the Miscellaneous Petition subject to payment of costs of Rs.5,000/- by the defendant No.2 to the plaintiff and directed the parties to appear before the trial Court without notice on 20.7.2016. The 2nd defendant promptly appeared before the trial Court. The plaintiff adduced evidence and after completion of evidence of the defendants, posted the matter for arguments and the matter was heard for some time.
4. When posted for arguments, at that stage the defendant No.1 filed the present application on 25.6.2018 seeking permission to file the written statement, contending that due to ill-health, she could not intimate her counsel who appeared in the Miscellaneous Petition. Since she has changed her residential premises from the address which was mentioned in the suit, she was not able to receive any information from her counsel as to who is appearing in Miscellaneous Petition filed by the 2nd defendant. Further, she was suffering from jaundice disease which required ayurvedic treatment and she was taking treatment at his native place and thereafter returned to his residence only in the month of May-2018. Therefore delay caused in giving instructions to her counsel to prepare the written statement. Along with the application, the defendant No.1 also filed the written statement. The said application was resisted by the plaintiff by filing objections.
5. The trial Court considering the application and the objections proceeded to dismiss the application mainly on the ground that the 2nd defendant has set up the 1st defendant to file this application to take away legal effect of non-filing of the written statement and the defendant has not at all chosen to file the written statement within the time and therefore the application came to be dismissed. Hence the present writ petition is filed.
6. The 1st respondent is served and unrepresented.
Notice to respondent No.2 is dispensed with in view of the memo filed by the petitioner.
7. I have heard the learned counsel for the petitioner.
8. Sri Sharath S. Gowda, learned counsel for the petitioner contended that the impugned order passed by the trial Court dismissing the application filed by the petitioner – 1st defendant for permission to file the written statement is erroneous and contrary to the material on record. He would further contend that Court below after allowing the Miscellaneous Petition on 28.6.2016 directed the parties to appear before the trial Court on 20.7.2016. Due to the ill-health of the present petitioner, she was unable to file the written statement within time. Thereafter she filed an application on 25.6.2018. There was a delay of nearly two years. The trial Court ought to have imposed certain costs and allowed the petitioner to file the written statement. The same has not been done. Therefore he sought to allow the writ petition.
9. Having heard the learned counsel for the parties, the admitted fact is that the 1st respondent i.e., the plaintiff filed the suit for specific performance and the same came to be decreed exparte on 27.4.2013. On the Miscellaneous Petition No.485/2013 filed by the defendant NO.2, the exparte Judgment & Decree came to be set aside on 28.6.2016 directing the parties to appear before the trial Court in O.S. No.5552/2012 on 20.7.2016. The defendant NO.2 appeared before the trial Court and the trial Court proceeded to record the evidence of the plaintiff and the defendant No.2. When the matter was posted for arguments, at that stage, the application came to be filed by the present petitioner - defendant No.1 along with the written statement, mainly contending that she was suffering from jaundice and she could not meet the advocate within time and therefore delay caused in filing the written statement. The trial Court ought to have allowed the application and permitted the defendant to conduct the suit.
10. The provisions of Order 8 Rule 1 of the Code of Civil Procedure is not mandatory and it is only directory and filing the written statement is to expedite and not to scuttle the relief. It does not impose an embargo on the power of the Court to extend time. Even though there was delay of 2 years, the trial Court ought to have imposed costs and permitted the defendant to file the written statement subject to the condition that the defendant shall proceed with the case without seeking any further adjournment and shall not drag on the matter. The same has not been done. In the interest of justice and the party should not be deprived the cause of substantial justice on technicality, the learned judge ought to have allowed the application subject to costs.
11. It is well settled that the application can be allowed and the written statement can be taken on record even after a belated stage beyond 90 days by imposing costs in order to do substantial justice between the parties. My view is fortified by the dictum of this Court in the case of Smt. C. Bhagya & others vs. M/s Poornaprajna House Building Co-operative Society Limited reported in ILR 2018 KAR 2559, wherein at paragraphs 22 & 25, it is held as under:
22. In view of the conflicting judgment by 3 Judges Bench, this Court has to follow the majority view and the majority view was that application can be allowed and the written statement can be taken on record even after a belated stage i.e., beyond 90 days period by imposing cost in order to do substantial justice between the parties.
25. In view of the aforesaid reasons assigned by this Court and the law declared by the Hon’ble Supreme Court, it is clear that the provisions of Order 8 Rule 1 of Code of Civil Procedure is not mandatory and it is only directory and the filing of written statement is to expedite and not to scuttle the hearing. It does not impose an embargo on the power of the Court to extend time. The present petitioners/defendants have made out a case, the circumstances which are exceptionally occasioned by a reason beyond their control and grave injustice would be caused if the time to file written statement is not extended. Therefore, the application filed by the defendants have to be allowed by imposing cost. Accordingly, the 2nd point raised in these petitions has to be answered in the affirmative holding that the defendants have made out a case to permit to file written statement in the interest of justice.
12. In view of the aforesaid reasons, writ petition is allowed. The impugned order passed by the trial Court dated 11.9.2018 dismissing I.A. No.9 filed by the defendant No.1 seeking permission to file the written statement is set asdie. The application – I.A. No.9 is allowed subject to payment of costs of Rs.15,000/- (Rupees fifteen thousand only) payable by the petitioner-1st defendant to the 1st respondent – plaintiff before the trial Court. On such payment of costs, the trial Court is directed to take the written statement filed, on record and proceed in accordance with law.
13. Since the matter is posted for arguments, in case the defendants wants to lead any evidence, shall place the affidavit evidence and produce the documents on the next date of hearing and proceed with the case without seeking any further adjournment and the trial Court is directed to permit the 1st defendant to contest the case. The trial Court is directed to dispose of the suit expeditiously subject to cooperation from the parties to the lis.
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JUDGE