IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.45116/2014 AND WRIT PETITION Nos.53423-424/2014 (GM-CPC) Between:
Sri Appaji, S/o Late Mallappa, Aged about 37 years, R/at 4th Cross, Vinayaka Nagar, Sir M.V. Extension, Hosakote – 562 114 Bangalore Rural District. … Petitioner (By Sri Rajaneesh C.M., Advocate) And:
1. Smt. Nagamma, W/o Late Muniyappa, Aged about 84 years.
2. Sri Jayaram, S/o Late Muniyappa, Aged about 56 years.
3. Sri Ramakrishna, S/o Late Muniyappa, Aged about 48 years.
4. Sri Ravi, S/o Late Muniyappa, Aged about 27 years.
5. Sri Shankara, S/o Late Muniyappa, Aged about 34 years.
6. Miss J. Munirathna, D/o Sri Jayaram, Aged about 31 years.
7. Sri J. Ravichandran S/o Sri ayaram, Aged about 29 years.
8. Sri J. Manjunatha, S/o Sri Jayaram, Aged about 27 years.
Respondent Nos.1 to 8 residing at No.76, G.M. Palya, Byraandra Main Road, 1st Cross, New Thippasandra Post, Bangalore – 560 075.
9. Sri Hullurappa, S/o Late Mallappa, Aged about 63 years.
10. Sri Nagaraj, S/o Late Mallappa, Aged about 60 years.
11. Sri Lokesh, S/o Late Mallappa, Aged about 56 years.
12. Smt. Bhagya, D/o Late Mallappa, Aged about 50 years.
Respondents 9 to 12 are residing at Hosakote Town Extension, Gattigana Habbi Road, Hosakote Taluk – 562 114, Bangalore District.
13. Smt. Jayamma, W/o Late Mallappa, Aged about 69 years, Residing at Kadabisanahalli Village, Varthur Hobli – 560 087, Bangalore South Taluk.
14. Sri Y.C. Rama Reddy, S/o Y. Kota Reddy, Aged about 59 years, No.1010, 26th Main Road, IV ‘T’ Block, Jayanagar, Bangalore – 560 041.
15. Sri Y. Sivananda Reddy, S/o Y. Kota Reddy, Aged about 57 years, No.689, 16th Main Road, III Block, Koramangala, Bangalore – 34.
16. Sri Jawahar Gopal, S/o Late Gopal Ramanarayan, Aged about 57 years.
17. Sri Manohar Gopal, S/o Late Gopal Ramanarayan, Aged about 51 years.
18. Sri Dhiren Gopal, S/o Late Gopal Ramanarayan, Aged about 48 years.
Respondent Nos.15 to 18 residing at ‘Rama Krupa’ Nos.13 & 14, 16th Main Road, Gandhinagar, Bangalore – 560 009.
19. M/s. Citilights Estates Pvt. Ltd., Represented by its Director, Mr. Sandeep Khanna, No.1/1, New Pushpa Vihar, Opp. Colaba Post Office, Mumbai Having its Branch office at No.3795, 7th Main, HAL II Stage, Indiranagar, Bangalore – 38.
20. Smt. Rathna, W/o Late N. Ramesh, D/o Late Muniyappa, Aged about 52 yeas, No.4, 12th Cross, Vijaya Nilaya, Giriyapp Layout, Kaggadasapura Main Road, C.V. Ramannagar Post, Bangalore – 93.
21. Smt. Saroja, W/o T.C. Ramchandrappa, D/o Late Muniyappa, Aged about 63 years, No.56, Varanasi, (Jingathimmannahalli) T.C. Palya Post, Bangalore – 36.
22. Smt. Lakshmamma, W/o Krishnappa, D/o Late Muniyappa, Aged about 67 years, No.119, 5th Main, 1st Cross, G.M. Palya, Byrasandra Main Road, New Thippasandra Road, Bangalore – 75.
23. Smt. Kempamma, W/o Muniyappa, D/o Late Muniyappa, Aged about 59 years, No.317, 4th Cross, B Main, Anandapura, T.C. Palya Post, Bangalore – 36. … Respondents (By Sri G.M. Rama Murthy, Advocate for R1 to R8; Sri Vivek Holla, Advocate for R16 to R18;
R9 to R12, R14, R15, R19 and R22 & R23 – Served and Unrepresented; Notice to R13, R20 & R21 is dispensed with v/o dated 22.06.2016) These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India, praying to set aside the impugned order dated 8.9.2014 passed by the Court of the II Fast Track Judge, Bangalore Rural District, Bangalore on I.A. Nos.6 to 18 in O.S. No.2843/2005 Annexure-E and etc.
These Writ Petitions coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioner, who was defendant No.1(d) in the trial Court has challenged the impugned order dated 08.09.2014 passed on I.A.Nos.16 to 18 filed under Section 151 of C.P.C. and the order passed on I.A.No.17 under Order 18 Rule 17 read with Section 151 of C.P.C. whereby the permission sought for to reopen the case and to permit the petitioner to file written statement and to take the written statement on record by recalling the order dated 08.04.2013 has come to be rejected.
2. It is noticed that the case was posted for filing of written statement on 01.04.2013 and on 08.04.2013 and trial Court had recorded “written statement as not filed”. Subsequently, the petitioner had filed an application seeking recall of the order and sought for reopening of the proceedings and to take the written statement on record by way of an application dated 25.08.2014. The reasons assigned for the delay was that the petitioner was unwell and hence could not file the written statement.
3. The trial Court has observed that there were no documents evidencing reason for the delay and for not filing written statement in time and that application seeking permission was filed after closure of evidence of plaintiff and also other defendants and when the case was posted for arguments.
4. Taking note of the nature of suit being one for partition and also noting that other defendants have taken defence and noticing that in the written statement the petitioner has asserted his right with respect to one-sixth share over the suit schedule property and that the issues have been framed on the basis of written statement of other defendants, case is made out in the peculiar facts of the case to justify affording another opportunity to the petitioner.
5. It is also noted that in fact written statement was accompanied with the application, which would demonstrates the petitioner’s bona fides. However, as there has been delay on the part of the petitioner, the impugned order dated 08.09.2014 is set aside and the applications, viz., I.A.Nos.16 to 18 in O.S.No.2843/2005 are allowed. The petitioner to pay costs of Rs.5,000/- (rupees five thousand only) to the defendant Nos.5, 6 and 7.
6. Noticing that suit is of the year 2005, the trial Court is to ensure that suit be disposed of expeditiously in accordance with the directions of Administrative Circular No.2/2017 dated 28.02.2017.
Subject to above observations, petitions are disposed of.
Sd/- JUDGE VGR