IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NOS.11828 & 12518 OF 2017 (GM-CPC) BETWEEN:
1. Sri.N.M.Nataraj S/o late N.G.Marimadappa Aged about 77 years 2. Smt.Hema W/o N.M.Nataraj Aged about 53 years Both r/at Nenanur Village Kiragavalu Hobli Malavalli Taluk – 571 430 3. Sri.N.R.Srinivas S/o H.Ramiah Aged about 42 years Madavadi Village Talakadu Village T.Narasipura Taluk – 571 124.
4. Sri.B.Krishnamurthy S/o Doddamarimadappa Aged about 66 years Bujjahalli Village Chikkarasinakere Hobli Maddur Taluk Mandya District – 571 428.
(By Sri.Nanjunda Swamy N., Advocate) AND:
1. Sri.Mayura S/o Mallappa Aged about 40 years 2. Sri.Ningaraju S/o Sri.Mallappa Aged about 43 years 3. Sri.Nagaraju S/o Sri.Mallappa Aged about 49 years No.1, 2 & 3 are r/at No.48, Aalanahalli Siddharthanagara Post Mysore – 570 011.
4. Smt.Jayamma W/o Sri.Naganna Aged about 39 years R/at No.3450 Veeranagere Lashkar Mohall Mysore – 570 001.
... PETITIONERS …RESPONDENTS (By Sri.O.Shivarama Bhat, Advocate for R1 to R4) These Writ Petitions are filed under Article 227 of the Constitution of India praying to quash the common order dated 21.1.2017 passed on I.A.Nos.29 & 30 both filed under Section 151 of CPC by the IV Additional Senior Civil Judge at Mysuru as per Annexure-L and allow the above said applications [I.A.No.29 & 30] produced at Annexure-G & H and etc.
These Writ Petitions coming on for Orders, this day, the Court made the following:-
ORDER The defendant Nos.6, 12, 13 and 16 have filed the present Writ Petitions against the order dated 21st January 2017 dismissing I.A.Nos.29 and 30 made in O.S.No.1554/2006 on the file of 4th Additional Senior Civil Judge, Mysuru.
2. The respondents who are the plaintiffs before the trial Court filed suit for partition and separate possession in respect of suit schedule properties morefully described in the plaint and also to declare that the gift deed dated 29.03.2006 executed by the 2nd defendant in favour of the 3rd defendant as null and void and not binding on the plaintiffs, contending that the suit schedule properties are the joint family properties of the plaintiffs and defendants. There was no partition. Therefore, they are entitled to share etc., 3. The defendant Nos.1 to 5, 7 to 11, 14 and 15 have filed written statement and denied the entire plaint averments and contended that the suit properties are not available for partition and the same were sold about 20 years back. Therefore, sought for dismissal of the suit. After completion of evidence on both the sides, when the plaintiff’s counsel arguments was heard in part, at that stage, defendant Nos.12 and 13 filed an application under Section 151 of Code of Civil Procedure to reopen the case. Defendant Nos.12, 13 and 16 filed an application under Section 151 of Code of Civil Procedure seeking permission to file memo for adoption of written statement already filed by the defendants 2 to 5, 7 to 11, 14 and 15 contending that only by mistake and oversight after filing the vakalath through their advocate neither they have filed separate written statement or memo for adopting the written statement of other defendants. It was contended that the mistake was noticed only after filing the amendment application as well as an application filed under Order 14 Rule 5 of Code of Civil Procedure. The delay was bonafide and not intentional and therefore, sought to allow the applications. The said applications was resisted by the plaintiffs. The trial Court considering the applications and objections by the impugned order dated 21st January 2017 dismissed both the applications. Hence, the present Writ Petitions are filed.
4. Sri.Nanjunda Swamy, the learned counsel for the petitioners-defendants contended that the impugned order passed by the trial Court rejecting the applications filed under Section 151 of Code of Civil Procedure is erroneous and contrary to material on record. The defendants 12, 13 and 16 only seeking permission to file a memo for adoption of the written statement already filed by other contesting defendants. Therefore, no prejudice will be caused to the plaintiffs by mere allowing the memo for adoption. Therefore, he sought to quash the impugned orders passed by the trial Court.
5. Sri.O.Shivarama Bhat, learned counsel for the respondents sought to justify the impugned order and contended that the suit was filed in the year 2006 for partition and separate possession and other defendants already filed written statement in the year 2007. Now when the matter was posted for arguments and the arguments addressed by the plaintiffs’ counsel in part, at this stage, present applications were filed only to drag and protract the proceedings. Therefore, there is no bonafide reasons for the defendants to file present applications. He would contend that in view Order 8 Rule 1 of Code of Civil Procedure, the defendants shall, within thirty days from the date of service of summons on them, file the written statement of their defence and where the defendants fail to file the written statement within thirty days, they shall be allowed to file within ninety days from the date of service of summons. Therefore, he sought for dismissal of the Writ Petitions.
6. I have heard the learned counsel for the parties to the lis.
7. It is not in dispute that the suit filed for partition and separate possession in respect of suit schedule properties contending that the suit schedule properties are joint family properties and there was no partition prior and therefore, they are entitled to share. The same was disputed by the defendants. The contesting defendants No.2 to 5, 7 to 11, 14 and 15 already filed the written statement contending that the very suit is not maintainable as the suit schedule properties are not available for partition. The same was sold 20 years back. It is also not disputed that after completion of evidence when the plaintiffs arguments were heard in part, at that stage, the present applications are filed. Considering the applications and objections, the trial Court dismissed the applications mainly on the ground that the present defendants who have engaged the learned counsel has only filed the vakalath and not filed the written statement. The trial Court further observed that there is a delay of ten years in filing the written statement and the defendants have not shown sufficient cause to condone the delay in filing the written statement. Therefore, the trial Court dismissed the both the applications.
8. Taking into consideration that the rights of the parties are involved in respect of suit schedule immovable properties and the suit filed for partition, it is ultimately for the plaintiffs or the parties to establish their respective case. Though there is a prohibition to file the written statement beyond 90 days and the Hon’ble Supreme Court held that filing of written statement within the time prescribed is not mandatory, it is only directory, still the Hon’ble Supreme Court held that only in exceptional cases, written statement can be allowed to be filed to meet the ends of justice between the parties.
9. In the present case, the applications are filed at a belated stage seeking permission to file the memo for adoption of written statement already filed by the defendants 2 to 5, 7 to 11, 14 and 15 contending that the same is correct one. Therefore, to avoid repetition of facts, hence, they have filed a memo dated 23.11.2016 for adoption of written statement already filed by the defendants 2 to 5, 7 to 11, 14 and 15. When the rights of the parties are involved, though the Hon’ble Supreme Court held that belated applications should not be allowed, it will delay the further proceedings, “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 expected to do so”. The memo for adoption of written statement already filed by the defendants 2 to 5, 7 to 11, 14 and 15 deserves to be allowed.
10. In the present case, the defendants 6, 12, 13 and 16 have only filed a memo dated 23.11.2016 for adoption of written statement. Mere granting permission for the defendants 6, 12, 13 and 16 to adopt the written statement already filed by the defendants 2 to 5, 7 to 11, 14 and 15 will no way prejudice the rights of the other parties subject to a condition that the present defendants shall not seek for any further evidence and they shall proceed with the matter.
11. For the reasons stated above, the Writ Petitions are disposed of. Memo dated 23.11.2016 filed by defendants 6, 12, 13 and 16 is permitted to take on record treating that the written statement already filed by other defendants 2 to 5, 7 to 11, 14 and 15 shall be adopted by the present defendants 6, 12, 13 and 16 and shall proceed with the suit in accordance with law. Accordingly, I.A.No.30 filed under Section 151 of Code of Civil Procedure seeking permission to file memo of adoption of written statement already filed by defendants 2 to 5, 7 to 11, 14 and 15 is allowed. I.A.No.29 filed under Section 151 of Code of Civil Procedure to re-open the case is dismissed.
12. The trial Court is directed to accept the memo for adoption of written statement already filed by the defendants 2 to 5, 7 to 11, 14 and 15 subject to payment of costs of Rs.5,000/- payable by the defendants to the plaintiffs before the trial Court on the next date of hearing.
Sd/- JUDGE Prs*