IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.No.42297 OF 2014 (GM-CPC) BETWEEN :
1. Smt. Prema, W/o. Dore, Aged about 72 years, R/at No.13, Anekallappa Matada Galli, 26th Cross, Narayana Shettypet, Cubbonpet, Bengaluru-560 002.
(Benefit of senior citizen not claimed) 2. Smt. Vasantha, W/o. Ranganath, Aged about 67 years, R/at No.150, 1st Cross, 4th Main, Anchepalya, Kasthurba Nagar, Bengaluru-560 026.
(Benefit of senior citizen not claimed) ... Petitioners (By Ms. Gowhar Unnisa, Advocate) AND 1. Smt. Ramarathnamma, W/o. Late S.Govindappa, Aged about 75 years, R/at No.232, 3rd Main, Vijayanand Nagara Nandini Layout, Bengaluru-560 079.
2. Smt. Sarvamangala, D/o. Late S.Govindappa, Aged about 43 years, R/at No.151, 9th Cross, Weavers’ Colony, Bannerghatta Road, Bengaluru-560076.
3. Smt. Prabhavathi, D/o. Late Govindappa, Aged about 41 years, R/at No.1007, Venkoba Rao Lane, Nagarthpet, Bengaluru-560 002.
4. Smt. Vedavathi, D/o. Late S.Govindappa, Aged bout 39 years.
5. Sri. Somashekar B.G., S/o. Late S.Govindappa, Aged about 38 years.
6. Sri. B.G. Bhanuprakash, S/o. Late S.Govindappa, Aged about 32 years.
Respondent Nos.4 to 6 are R/at No.232, 3rd Main, Vijayanand Nagara, Nandini Layout, Bengaluru-560 079.
7. Sri. G.Suresh Babu @ Babu, S/o. Late S.Govindappa, Aged about 51 years, R/at No.25, Khilari Road, Bengaluru-560 053.
8. Sri. Ramesh, S/o. Late Ranganathamma, Aged about 52 years, R/at 6th Cross, Weavers’ Colony, Gottigere Hobli, Bengaluru-560 083. ... Respondents (By Sri. P.Prasanna Kumar, Advocate for R1 to R6; Notice to R7 & R8 d/w v/o dated 17.09.2014; R3-served) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to call for the entire records on the file of the XVIII Additional City Civil and Sessions Judge, Bengaluru and etc.
This writ petition coming on for Preliminary Hearing in ‘B’ Group, this day, the court made the following:-
O R D E R The defendants in O.S.No.6549/1997 are invoking the writ jurisdiction of this Court for laying a challenge to the order dated 21.06.2014 made by the learned trial Court Judge, whereby their application in I.A.XIV filed under Section 151 of the Code of Civil Procedure, 1908, seeking leave to file the Written Statement for condonation of delay has been rejected. After service of notice, the respondents have entered appearance through their counsel and opposed the writ petition.
2. Learned counsel for the petitioners vehemently contends that the impugned order is bereft of justice in as much as it denies a reasonable opportunity of resisting the suit by filing the Written Statement; nothing prevented the Trial Judge from imposing some reasonable cost and thereby allow their application for filing of the Written Statement after condoning the delay. This exercise having not been done, the impugned order is liable to be set at naught.
3. Learned counsel for the contesting respondents makes submission in justification of the impugned order of the Court below. He points out the reason assigned by the Court below at para No.5 of the impugned order as to why the Court denied leave due to enormous delay brooked in filing the Written Statement; this order being a product of exercise due discretion, the writ Court ordinarily shall not interfere. So arguing, he seeks dismissal of the writ petition.
4. I have heard the learned counsel for the petitioners and learned counsel for respondents. I have perused the writ petition papers. I decline to grant the relief sought by the petitioners for the following reasons;
(a) The suit for partition and separate possession of the subject properties was filed on 01.09.1997; the petitioners came to be impleaded as additional defendants on 13.12.2007; they had filed their application on 29.04.2014 and this application was not accompanied by Written Statement;
(b) These facts have been narrated by the trial Court at para No.5 of the order as under:
“Perused I.A.14, objection and case file. Suit was initially filed against the 1st defendant. Defendant No.2 and 3 were impleaded at the instance of this court dated 13.12.2007. Defendant No.2 and 3 appeared before the court pursuant to the application filed by plaintiffs under Order 1 Rule 10 CPC on 21.09.2010. Defendants 2 and 3 after impleading in the case did not file written statement since from 2010 to April 2014. Written statement of defendant Nos.2 and 3 taken as not filed on 30.07.2013. Defendants 2 and 3 have not taken any steps seeking permission to file written statement from 30.07.2013 to 29.04.2014. It is contended in the affidavit that they could not file written statement as they were in search of documents. The particulars of the document is not mentioned in the affidavit which caused delay in filing the written statement. Absolutely there is no exceptional situations in not filing the written statement after expiry of 90 days and permit them to file the written statement. It is significant to note that defendants 2 and 3 except filing the interim application, not enclosed the written statement they intended to file. Looking to the over all circumstances, reasons assigned by defendant Nos.2 and 3 do not fall within the exceptional situation as laid down by Hon’s Supreme Court reported in a decision (2009)3 SCC 513 (Mohammed Yusuf Vs. Faij Mohammad and others).
(c) The Court below has rejected the applications filed by the petitioners by banking on the decision of the Apex Court in the case of Mohammed Yusuf Vs. Faij Mohammad and Others (2009) 3 SCC 513. Even the justice of the case require that the petitioner should not be permitted to file the Written Statement at this enormously delayed stage.
In the above circumstances, this writ petition being devoid of merits, stands dismissed.
No costs.
Sd/- JUDGE NR/-