IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.30220 OF 2019 (GM - CPC) BETWEEN:
SRI.S.SUDERSON, S/O SRI.SINGARAVELAN, AGED ABOUT 48 YEARS, R/AT NO.25, 10TH MAIN, VASANTHNAGAR, BENGALURU – 560 052.
... PETITIONER (BY SRI. VIGHNESHWAR S SHASTRI, ADVOCATE) AND:
SRI.M.ABHAY KUMAR, S/O LATE R.MOHAN LAL, R/AT NO.22/1, 8TH MAIN, 7TH CROSS, VASANTHANAGAR, BENGALURU – 560 052.
... RESPONDENT (BY SRI. NISHANTH A.V., ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 03.07.2019 PASSED ON I.A. IN O.S.NO.4189/2018 ON THE FILE OF CITY CIVIL JUDGE AT BENGALURU AS PER ANNEXURE – F AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the defendant in a specific performance suit in O.S.No.4189/2018 is invoking the writ jurisdiction of this Court for assailing the order dated 03.07.2019, a copy whereof is at Annexure-F, whereby the learned Principal City Civil & Sessions Judge, Bengaluru, has refused to accept the Written Statement that was filed belatedly. After service of notice, the respondent-plaintiff having entered appearance through his counsel resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that reprieve needs to be granted to the petitioner subject to cost & condition for the following reasons:
a) suit is for a decree of specific performance; it is of the year 2018; no prejudice would have been caused to the other side if the Written Statement filed belatedly was accepted by the Court below subject to the cost & condition especially, when the trial was yet to begin; thus, the rigor enacted in the proviso to Order VI Rule 17, 1908 of CPC is not invokable; this aspect of the matter having not been adverted to by the learned trial judge, there is error apparent on the face of the record; and, (b) the refusal to accept the Written Statement filed belatedly would cause great loss and manifest injustice to the defendant, who intends to prosecute his defence in the said specific performance suit; the reasoning of the Court below that the application seeking permission to file the Written Statement belatedly, ought to have been accompanied by the Written Statement though is ideal, cannot be pressed into service as a thumb Rule in all circumstances.
In the above circumstances, the writ petition succeeds; the impugned order is set at naught; Petitioner’s application having been favoured, the Written Statement filed by him vide Annexure-E is accepted on record, subject to he paying a cost of Rs.10,000/- only to the respondent-plaintiff on or before the next date of hearing of the suit; if the costs are not paid accordingly, the impugned order now quashed shall stand resurrected.
All other contentions of the parties are kept open.
MDS/-
Sd/- JUDGE