IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.25796 OF 2017 (GM-CPC) BETWEEN:
SRI MANJAPPA POOJARY S/O.SESAPPA POOJARY AGED ABOUT 36 YEARS R/AT DADDU HOUSE PARENKY VILLAGE & POST BELTHANGADY TALUK D.K.-574 003 ... PETITIONER (BY SRI KETHAN KUMAR, ADVOCATE) AND:
1. SRI BHOJA POOJARY S/O.LATE HIRMALA POOJARY AGED ABOUT 63 YEARS R/AT MAHESH NIVAS, ADYAR ADYAR VILLAGE & POST MANGALORE TALUK D.K.-575 007 2. SMT. LEELAVATHI W/O.LATE SANJEEVA POOJARY AGED ABOUT 59 YEARS R/AT KURUDANGE HOUSE MACCHINA VILLAGE & POST BELTHANGADY TALUK D.K.-574 224 ... RESPONDENTS (BY SMT.ARCHANA MURTHY, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 29.05.2017 (ANNEXURE-A) PASSED BY THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFAC, BANTWAL, D.K. ON IA.NO.XV IN OS.NO.36/2015 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the eighth defendant in a partition suit in O.S.No.36/2015 is knocking at the doors of writ Court for assailing the Order dated 29.05.2017, a copy whereof is at Annexure – A whereby the application in I.A.No.XV filed under Order VIII Rules 1 & 2 read with Section 151 of C.P.C, 1908, seeking permission to file Written Statement has been rejected by the learned Principal Senior Civil Judge, Bantwal. After service of notice, the respondents having entered appearance through their counsel, resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petitioner papers, relief needs to be accorded to the petitioner for the following reasons:
a) ordinarily, the defendant should file the Written Statement if he wants to resist the suit within the period prescribed by amended Code of Civil Procedure. It is true that subject to exceptions, said provisions are held to be mandatory and delay in filing the Written Statement is discouraged. However, there are circumstances wherein delay if explained possibility of due diligence not lacking, the defendant needs to be permitted to file written statement of course subject to cost and condition, on a plausible explanation being shown; and, b) the battle lines in a suit are drawn after filing of the pleadings of the parties; refusing to receive the Written Statement virtually amounts to blocking all the defence available to the defendants; this is not a happy affair in a fair adjudication process required by law; the Court below in the given circumstances ought to have condoned the delay of 190 days in filing the Written Statement subject to payment of cost and condition if any; this having not been done, this petition warrants the indulgence of the writ Court to set the injustice at naught.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; the subject application having been favoured, the delay in filing the Written Statement is condoned and the Court below is directed to receive the Written Statement subject to petitioner paying a cost of Rs.5,000/- to each of the respondent-plaintiffs within a period of one month, failing which, the order now quashed shall stand resurrected.
Sd/- JUDGE KTY