IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION NO.12949 OF 2016 (GM-CPC) Between:
Sri.Abdul Munaf Shaik, S/o. Shaik Meeran, Aged 62 years, Proprietor, M/s. Alliance Industries, R/at No.9, 2nd Floor, 9th Cross, Chinappa Garden, Bengaluru-560 046. …Petitioner (By Sri.S.Srivatsa, Sr.Advocate for Smt.Farah Fathima, Advocate) And:
Sri.B.Honnaiah, Since deceased represented by his LRs, 1(a). Smt. Jayamma, W/o.Late B.Honnaiah, Aged about 83 years, R/at No.40, Agrahara Dasarahalli, Magadi Road, Bengaluru-560 079.
1(b). H.Jaganatha, S/o.Late B.Honnaiah, Aged about 66 years, R/at No.411, BHCS Layout, 1st Stage, 9th Cross, Annapoorneswaranagar, Bengaluru-560 091.
1(c). H.Venugopal, S/o.Late B.Honnaiah, Aged about 62 years, R/at No.65/4, 2nd Cross, 3rd Main Road, Ranganathapura, Magadi Road, Kamakshipalya, Bengaluru-560 079.
1(d). D.Nagendra, S/o.Late B.Honnaiah, Aged about 59 years, 1(e). Yuvaraj, S/o.Late B.Honnaiah, Aged about 43 years, 1(d) and 1(e) both are residing At No.40, Agrahara Dasarahalli, Magadi Main Road, Bengaluru-560 079. …Respondents (By Sri.N.Bayya Reddy, Advocate for R1(A-E)) This Writ Petition is filed under Article 227 of the Constitution of India praying to quash/set aside by the writ of certiorari the order on I.A.No.8 dated 30.10.2015 passed by the Court of III Additional City Civil and Session Judge, Bengaluru in O.S.No.2721/2010 vide Annexure-A.
This Writ Petition coming on for Orders, this day, the Court made the following:
ORDER Heard the petitioner’s counsel and the respondents counsel. Petitioner being the defendant in the suit O.S.NO.2721/2010, on the file of III Additional City Civil and Sessions Judge, Bengaluru City has filed this Writ Petition aggrieved by the order dated 30.10.2015 on I.A.No.8. The Petitioner/defendant made an application under Order 9 Rule 7 read with 151 of CPC for recalling the order passed on I.A.No.7. The learned trial Judge dismissed the application with cost of Rs.1,000/-.
2. The learned counsel for the petitioner submits that filing of written statement with the application under Order 9 Rule 7 CPC shows bonafides on the part of petitioner. Here in this Court also, on 28.04.2016, the petitioner himself came forward to deposit a sum of Rs.1,00,000/- as compensatory costs to the plaintiff in the event of petitioner being extended an opportunity to file written statement. This conduct of the petitioner further fortifiers bonafides in intention to contest the suit. Therefore, he submitted that an opportunity be given to petitioner. The learned counsel further submits that out of Rs.1,00,000/- deposited by the petitioner, a reasonable sum of money be ordered to paid to respondents towards cost and the rest refunded to petitioner.
3. The respondents’ counsel opposes the Writ Petition and argues for sustaining the impugned order.
4. The trial Court appears to have rejected the application noticing the manner in which the petitioner being the defendant in the suit prolonged the case without filing written statement. I do not find any error in it. But it also remains a fact that the petitioner filed his written statement along with the application under Order 9 Rule 7 CPC. If written statement had been accepted, considering the reasons assigned in the application, nothing more than providing an opportunity to the petitioner would have been the consequence. The petitioner has demonstrated his bonafides by depositing Rs.1,00,000/- in advance towards compensatory cost. Therefore, to meet the ends of justice, the impugned order can be set aside. Hence, the following:
ORDER i) Writ Petition is allowed.
ii) The order dated 30.10.2015 passed on I.A.No.8 is set aside.
iii) The trial Court is directed to accept the written statement.
iv) Out of cost of Rs.1,00,000/- deposited by the petitioner, respondents are at liberty to withdraw Rs.25,000/- and the Registry is directed to refund the amount of Rs.75,000/- to the petitioner.
v) The petitioner is directed to co-operate with the trial Court for early disposal of the suit.
sd/- JUDGE NS