Karnataka High Court
Smt Manjula Alias Brindha vs Smt H Shivamma on 4 March, 2022
Bench: E.S.Indireshpresided Byesij
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.4596 OF 2022 (GM-CPC)
BETWEEN:
1 . SMT. MANJULA ALIAS BRINDHA
W/O LATE SRI. H GANGADHAR
AGED ABOUT 46 YEARS
R/O NO.17, 6TH CROSS
I MAIN ROAD, SHIVANAGAR
RAJAJINAGAR
BENGALURU-560 010.
2 . MS. AISHWARIYA
D/O LATE SRI. H GANGADHAR
AGED ABOUT 22 YEARS
R/O NO.17, 6TH CROSS
I MAIN ROAD, SHIVANAGAR
RAJAJINAGAR
BENGALURU-560 010.
...PETITIONERS
(BY SRI. BASAVANNA K .M, ADVOCATE)
AND:
1. SMT. H SHIVAMMA
D/O LATE SRI. HANUMAPPA
W/O LATE SRI. SATHYANARAYANA
AGED ABOUT 60 YEARS
R/O NO.7(22), 5TH CROSS, HMR LAYOUT
BEHIND MOVE 'N' PICK HOTEL
GOKULA,
BENGALURU-560054.
2
2. SRI. SUDHEER DESU
S/O SRI. D SUBBARAJU
AGED ABOUT 47 YEARS
R/O NO.44, ANJANADRI NILAYA
1ST FLOOR, V MAIN ROAD
8TH A CROSS, KURUBARAHALLI
MAHALAKSHMIPURAM
BENGALURU-560086.
3. SMT. SHARMILA DESU
W/O SUDHEER DESU
AGED ABOUT 45 YEARS
R/O NO.44, ANJANADRI NILAYA
1ST FLOOR, V MAIN ROAD
8TH A CROSS, KURUBARAHALLI
MAHALAKSHMIPURAM
BENGALURU-560086.
.....RESPONDENTS
(BY SRI. MAHESH KIRAN SHETTY, ADVOCATE
FOR C/R No.1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED 14.01.2022 ON
I.A.NOS.26 TO 28 IN OS NO.6798/2014 PASSED BY THE
XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-
27) BENGALURU AS PER ANNX-H.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioners have
challenged the order dated 14.01.2022 on I.A-26 to 28
passed in O.S.No.6798/2014 on the file of the XII
Additional City Civil and Sessions Judge, Bengaluru
(CCH-27), rejecting the application for accepting the
written statement filed by the petitioners.
2. It is the case of the plaintiff/respondent No1
herein that the plaintiff has filed a suit for partition and
separate possession of half share in the suit schedule
property. The defendants entered appearance.
Defendant No.1 has not filed written statement before
the Trial Court and he died on 17.09.2014 leaving
behind the plaintiff/respondent No.1 and defendants
No.1(a) and 1(b)/petitioners herein. The defendant
No.2 has not entered appearance before the Trial
Court. However, the plaintiff/respondent No.1 has filed
application for bringing LRs of deceased defendant
No.1 i.e., petitioners herein and the notice was issued
on the said application. However, the petitioners
herein have not represented before the Trial Court and
remained absent, and as such, they have been placed
exparte by the Trial Court. Thereafter, the petitioners
herein has filed an application in I.A.Nos.26 and 27
before the Trial Court seeking to re-open the case and
sought for permission to file written statement and also
filed I.A-28 for condone the delay in filing the written
statement. The said applications were resisted by the
plaintiff/respondent No1. The Trial Court, after
considering the material on record, by order dated
14.01.2022, rejected the application in I.A.Nos.26 to
28. Being aggrieved by the same, the legal
representatives of deceased defendant No.1 have
presented this writ petition.
3. Heard Sri. Basavanna K.M., learned counsel
appearing for the petitioners and Sri.Mahesh Kiran
Shetty, learned counsel appearing for caveator-
respondent No.1.
4. Sri.Basavanna K.M., learned counsel
appearing for the petitioners contended that the
defendant No.1 (father of the petitioners herein) has
not contested the matter by filing written statement
and he died in the year 2014. Further, he submitted
that the son of the deceased defendant No.1, namely,
Dilip G also died on 30.07.2012. Accordingly, the
written statement was not filed on account of illness of
members in the family and he also invited the
attention of the Court to the reasons assigned in the
affidavit accompanying applications in I.A-26 to 28,
and as such, sought for interference of this Court. In
order to, buttress his arguments he places reliance on
the judgment of the Hon'ble Apex Court in the case of
C.N.RAMAPPA GOWDA VS C.C.CHANDREGOWDA (DEAD)
BY LEGAL REPRESENTATIVES AND ANOTHER reported in
[(2012) 5 SCC 265].
5. Per contra, Sri.Mahesh Kiran Shetty, learned
counsel appearing for caveator-respondent No.1
opposed the writ petition by stating that, there is an
inordinate delay of 7 years in filing written statement
and therefore, he sought to justify the impugned order
dated 14.01.2022 passed by the Trial Court.
6. Having heard the arguments advanced by
the learned counsel appearing for the petitioners and
the reasons assigned in the affidavit accompanying
application, I am of the view that, since the lis between
the parties is with regard to relief of partition and
separate possession, I am of the view that, the finding
recorded by the Trial Court vide Order dated
14.01.2022 is to be set aside by allowing the
applications I.A-26 to 28, and to accept the written
statement filed by the legal representatives of
deceased defendant No.1.
7. It is not in dispute that, the suit is filed for
partition and separate possession in respect of the suit
schedule property. Undisputedly, the defendant No.1
died in the year 2014, and taking into consideration
the averments made in the affidavit accompanying
application and the law declared by the Hon'ble Apex
Court in the case of SALEM ADVOCATES BAR
ASSOCIATION, TAMIL NADU VS UNION OF INDIA
reported in [AIR 2005 SC 3353], the Hon'ble Apex
Court has held that, the time stipulated to file written
statement is only directory in nature and not
mandatory.
8. Despite this fact, in view of the submission
made by Sri.Mahesh Kiran Shetty, learned counsel
appearing for the respondent No.1 that the legal
representatives of deceased defendant No.1 sought to
file written statement at the belated stage, that is,
after 7 years, I am of the view that, the writ petition
requires to be allowed, with cost of Rs.25,000/-
payable by the petitioners herein to compensate the
respondents in regard to delay in filing the written
statement after 7 years.
Sd/-
JUDGE
GRD
