IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JUNE 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA W.P.NO.9449 OF 2017 (GM-CPC) BETWEEN:
SRI. B.N. VASUDEVA PRABHU AGED ABOUT 57 YEARS, S/O OF LATE SRI. NARAYANA PRABHU RESIDING AT: ANDE CHANTRA, M.G. ROAD, CHIKKAMAGALUR- 577 101.
... PETITIONER (BY SRI. C.N. KAMATH, ADVOCATE) AND:
1. SMT. S.M. SUNANDA HONNAPPA, W/O SRI. H.D. HONNAPPA, AGED ABOUT 66 YEARS, RESIDING AT ANDE CHANTRA, M.G. ROAD, CHIKKAMAGALUR- 577 101.
2. SRI. H.N. NATARAJ S/O OF SRI. H.N. HONNAPPA, AGED ABOUT 66 YEARS, RESIDING AT ANDE CHANTRA, M.G.ROAD, CHIKKAMAGALUR- 577 101.
…RESPONDENTS (BY SRI. SACHIN B.S. ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED:20.01.2017 MADE IN O.S.NO.425/2016 PASSED BY THE COURT OF THE PRINCIPAL CIVIL JUDGE CHICKMAGALUR VIDE ANNEXURE-A AND ETC.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING :
ORDER The defendant filed the present writ petition against the order dated 20.01.2017 made in O.S. No.425/2016 on the file of the Principal Civil Judge & JMFC, Chickmagalur rejecting the application filed by the defendant under Section 151 of CPC for permission to file written statement.
2. The respondent No.1 who is the plaintiff before the trial Court has filed a suit in O.S. No.425/2016 for permanent injunction in respect of the suit schedule property contending he is the owner in possession and enjoyment of the same. Defendant has no manner of right, title and interest in the suit schedule property. The court issued summons to the defendant on 7.10.2016. On 4.1.2017 defendant filed power and it was posted before the Court on 20.01.2017. On 20.01.2017 advocate for defendant filed an application under Section 151 of CPC praying time to file written statement. The trial court rejected the application on the ground that already 90 days over and statement of defendant is taken as not filed and posted the matter for plaintiff’s evidence on 23.03.2017. On that day no evidence commenced. Hence the present writ petition is filed.
3. Sri Vinayak, learned counsel appearing for Sri C N Kamath, learned counsel for the petitioner contended that the impugned order passed by the trial court rejecting the application for permission to file written statement is erroneous, contrary to law. The trial court rejected the application without any basis. Even though there is no delay the trial court rejected the application on the ground that the application is filed beyond 90 days. The trial court ought to have given an opportunity to the defendant to file written statement and decide the matter on merits, instead of rejecting the application on technicality. Therefore he sought to allow the present writ petition.
4. Per contra, Sri Ravi Kumar, learned counsel appearing for Sri Sachin B S sought to justify the impugned order and vehemently contended that there is a delay of 13 days in filing the application itself. In fact along with the application, the defendant has not filed any written statement. He has filed only an application for seeking time. Therefore, the trial court was justified.
5. I have heard the learned counsel for the parties to the lis.
6. It is not in dispute that suit filed for permanent injunction by the plaintiff against the defendant in respect of the immovable property. The right of the parties has to be decided on merits and the parties should not be thrown out from the court on technicality. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is being expected to do so.
7. Mere allowing an application for permission to file written statement is no way prejudice to the case of the plaintiff as admittedly the plaintiff has not yet commenced his evidence. Taking into consideration the facts and circumstances of the case, the trial court ought to have granted an opportunity to the petitioner to file the written statement. While rejecting the application, the trial court has not assigned any reasons except saying already 90 days is over. No reasons are assigned and the impugned order passed by the trial Court is not a speaking order. In view of the same, the impugned order cannot be sustained.
8. For the reasons stated above, the writ petition is allowed. The impugned order dated 20.01.2017 made in O.S. No.425/2016 on the file of the Principal Civil Judge & JMFC, Chickmagalur is quashed. I.A. 1 filed by the defendant under Section 151 of CPC for permission to file was allowed subject to payment, cost of `.2,500/- payable by the defendant to the plaintiff before the trial Court and written statement should be filed within a period of two weeks from the date of receipt of this order.
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