IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 14762 OF 2017 (GM-CPC) BETWEEN:
SRI. MANJUNATHA HEBBAR AGED ABOUT 73 YEARS, S/O SRI KISMATHI RAMAKRISHNA HEBBAR, HEROOR VILLAGE, KUNDAPURA TALUK-576 201 UDUPI DISTRICT.
(BY SRI. CHANDRANATH ARIGA K, ADVOCATE) … PETITIONER AND:
1. SRI. VENKATARAMANA HEBBAR, AGED ABOUT 67 YEARS, S/O SRI.KISMATHI RAMAKRISHNA HEBBAR, HEROOR VILLAGE, KUNDAPURA TALUK-576 201 UDUPI DISTRICT.
2. SRI.JANARDHANA HEBBAR AGED ABOUT 61 YEARS, S/O SRI.KISMATHI RAMAKRISHNA HEBBAR, HEROOR VILLAGE, KUNDAPURA TALUK-576 201 UDUPI DISTRICT.
… RESPONDENTS (BY SRI. GURURAJ R, FOR SRI. VIGHNESHWAR S SHASTRI, ADVOCATES FOR R1; NOTICE TO R2 IS D/W V/O DATED 03.07.2017) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 17.09.2016 ON I.A.IV IN O.S.22/2014 ON THE FILE OF THE SR. CIVIL JUDGE, KUNDAPURA AT ANNEX-E AND ALLOW THE APPLICATION NO.1V IN O.S.22/2014 ON THE FILE OF SR. CIVIL JUDGE, KUNDAPURA THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the defendant in a partition suit in O.S.No.22/2014 is invoking the writ jurisdiction of this Court for assailing the order dated 17.09.216, a copy whereof is at Annexure-E, whereby his application in IA No.4 filed under Section 151 of CPC, 1908, seeking leave of the Court to receive the Written Statement filed belatedly has been rejected. After service of notice, the respondent No.1 having entered appearance through his counsel, contests the writ petition.
2. Having heard the learned counsel for the parties and having perused the writ petition papers, the impugned order is liable to be set at naught because:
(a) the affidavit which supports his subject application states the circumstances that resulted into brooking of delay in filing the Written Statement; this apparently constitutes a plausible explanation and holding it otherwise would virtually amounts to shutting out all the defence;
(c) ordinarily, a litigant is to complete the pleadings within the period prescribed by law, is true; however in partitions suits, the rigor enacted in the prviso to Order VI Rule 17 of CPC, does not operate stricto sensu when a plausible explanation is offered for the delay caused in filing the Written Statement; and, (c) the Court below could have been little lenient in condoning the delay in filing the Written Statement, subject to cost & condition; this having not been done there is an error apparent on the face of the record that resulted into prejudice to the petitioner.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; petitioner’s application in IA No.4 having been favoured, the delay having been condoned, Court below is directed to receive the Written Statement on record subject to the condition that petitioner shall pay a cost of Rs.5,000/- to the first respondent on the next date of hearing or within a month, whichever is later, failing which the order now quashed shall stand resurrected.
All contentions of the parties are kept open.
Sd/- JUDGE Bsv