Sri. Mariem Siddiqa vs Sri. T Abdul Mueed
2022 Latest Caselaw 9204 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 21ST DAY OF JUNE, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        WRIT PETITION NO.10903 OF 2022 (GM-CPC)

BETWEEN:

SRI. MARIEM SIDDIQA
D/O LATE SRI T ABDUL MUJEEB
AGED ABOUT 51 YEARS
RESIDING AT PLAT NO.202
2ND FLOOR, NO.176, H.B.R. LAYOUT
BENGALURU -560043
                                        ...PETITIONER

(BY SRI. SUNIL.S.RAO, ADVOCATE FOR SRI. T SESHAGIRI
RAO, ADVOCATE)

AND

1.     SRI. T ABDUL MUEED
       S/O LATE SRI T ABDUL MUJEEB
       AGED ABOUT 47 YEARS,
       PLOT NO.302, NO.12, 1ST CROSS
       KENCHAPPA ROAD, FRAZER TOWN
       BENGALURU -560005

2.     SRI FATHEEN SIDDIQA
       S/O SRI MOHAMMED AZHAR
       AGED ABOUT 28 YEARS
       R/AT PLAT NO.202, 2ND FLOOR,
       NO.176, H B R LAYOUT
       BENGALURU -560084
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3.   SRI T ABDUL MUIZZ
     S/O SRI MOHAMMED AZHAR
     AGED ABOUT 25 YEARS,
     R/AT PLAT NO.202, 2ND FLOOR
     NO.176, H B R LAYOUT
     BENGALURU -560084

4.   SMT TAHREEM SIDDIQUA
     D/O SRI MOHAMMED AZHAR
     AGED ABOUT 22 YEARS,
     R/AT PLAT NO.202,
     2ND FLOOR, NO.176
     H B R LAYOUT,
     BENGALURU -560084

5.   MR. DHANRAJ R
     S/O LATE RAMA REDDY,
     AGED ABOUT 35 YEARS,
     R/O NO.931, KACHARAKANAHALLI,
     ST. THOMAS POST,
     BENGALURU-560084.
                                     ...RESPONDENTS

(BY SRI.MS.PARVATHY NAIR, ADVOCATE FOR UDITHA
RAMESH, ADVOCATE FOR C/R-1)


     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER VIDE ANNX-A DTD 25.02.2022
ONE PASSED BY IN O.S.NO.7492/2017 IN XXXV ADDL.
DISTRICT AND SESSION JUDGE BENGALURU ON IA NO.4
AND CONSEQUENTLY NECESSAR ORDERS BE PASSED TO
ALLOW IA NO.4 AND SUBSEQUENTLY THE TRIAL JUDGE BE
DIRECTED TO TAKE THE WRITTEN STATEMENT OF
DEFENDANT NO.1/PETITIONER ON RECORD AND ETC.,
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     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                             ORDER

The captioned writ petition is filed by defendant

No.1 feeling aggrieved by the order dated 25.02.2022

passed by the learned XXXV Additional City Civil and

Sessions Judge, Bengaluru (CCH-36) on I.A.No.4, filed

under Section 151 of CPC in O.S.No.7492/2017 as per

Annexure-A, wherein present petitioner sought

permission to file written statement. The said

application is rejected, which is under challenge.

[[

2. Respondent No.1/plaintiff has instituted a suit for

partition and separate possession in

O.S.No.7492/2017. Respondent Nos.2 to 4 are the

children of present petitioner herein and they are

asserting right and title based on gift deed executed

by petitioner herein. In the said gift deed, respondent

Nos.2 to 4, in their written statement, have taken

specific contention that their mother acquired right

and title on the basis of oral gift deed executed by

respondent No.1/plaintiff.

3. The petitioner by filing an application in I.A.No.4,

sought leave to contest the proceeding by filing

written statement. The right of respondent Nos.2 to 4

would be subject to respondent No.1 succeeding in

establishing that there was a oral gift deed by her

father. Therefore, to this limited extent petitioner is

entitled to contest the proceeding by filing written

statement though, this Court would also find that

there is some laxness on part of petitioner in not filing

written statement within the stipulated period.

4. Heard learned counsel appearing for the

petitioner and learned counsel appearing for

respondent No.1/plaintiff.

5. The present petitioner is asserting right over the

property on the basis of alleged oral gift deed

executed by respondent No.1/plaintiff. Respondent

No.1/plaintiff has filed a suit for partition and sought

for cancellation of gift deed dated 05.10.2016

executed by present petitioner in favour of respondent

Nos.2 to 4. The validity of the gift deed dated

05.10.2016 would be subject to proof.

6. It is in this background, this Court would find

that the present petitioner is entitled to defend the

suit. Respondent Nos.2 to 4 would succeed only if

defendant No.1 is able to prove the alleged oral gift

deed executed by respondent No.1/plaintiff.

Therefore, this Court is of the view that the petitioner

needs to be afforded one opportunity to defend the

suit by filing written statement. All these significant

details are not examined by the learned Trial Judge

while rejecting the application. The Court below has

stressed more on the fact that there is inordinate

delay in filing the written statement. This view taken

by the learned Trial Judge is in direct conflict with the

principle laid down by the Apex Court in the case of

Salem Advocate Bar Association, Tamil Nadu vs.

Union of India, reported in (2005) 6 SCC 344.

The Apex Court, in the judgment cited supra, has held

that the amended provisions of Order 8 rule 1 of CPC

are directory in nature and not mandatory. Therefore,

it presupposes that the learned Trial Judge is vested

with discretion to consider the applications where

defendants seek leave to file written statement after

expiry of stipulated period. Such a discretion has to be

examined in the context of valuable rights of the

parties and also depending upon the facts and

circumstances of the particular case.

6. The order under challenge needs to be set aside.

The learned Trial Judge has not exercised discretion

judiciously. On the contrary, by adopting hyper

technical approach, has proceeded to reject the

application. Consequently, the defence of petitioner is

taken off the record. Therefore, the order under

challenge warrants interference at the hands of this

Court. Hence, I pass the following;

ORDER

i. The writ petition is allowed. ii. The impugned order passed by the learned Trial Judge on I.A.No.4 is set aside.

iii. The application seeking permission to file written statement is allowed, subject to petitioner paying a cost of Rs.10,000/- to respondent No.1/plaintiff on the next date of hearing. In the event respondent No.1 chooses to file rejoinder, it is open for respondent No.1 to file rejoinder to the written statement.

iv. Trial Court to frame appropriate issues if it arises for consideration, in the light of stand taken by petitioner No.1 in the written statement. it is made clear that the petitioner shall

cooperate for early disposal of the suit and shall not indulge in protracting the hearing of the suit.

Sd-

JUDGE

HDK