Karnataka High Court
Sri. R Surendra Babu vs Smt Padma W/O Sri V Ramachandrappa ... on 14 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:45463
WP No. 26998 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 26998 OF 2023 (GM-CPC)
BETWEEN:
SRI. R SURENDRA BABU,
S/O V RAMAIAH,
AGED ABOUT 53 YEARS,
R/AT NO.49, 19TH J CROSS
KAGGADASAPURA, C V RAMANA NAGAR POST,
BENGALURU - 560 093.
...PETITIONER
(BY SRI G.V CHANDRASHEKAR, SR. ADVOCATE,
SMT APEKSHA D, ADVOCATE)
AND:
SMT PADMA
W/O SRI V RAMACHANDRAPPA,
Digitally DECEASED BY LRS AND OTHERS
signed by A K
CHANDRIKA 1. SMT INDU @ INDUSHREE,
Location:
HIGH COURT D/O LATE PADMA, AGED MAJOR,
OF
KARNATAKA R/AT NO.406/2, 10TH CROSS, 7TH MAIN,
SHANTHINAGAR, BENGALURU - 560 028.
2. SMT VEENA,
D/O LATE PADMA,
AGED MAJOR, R/AT NO.406/2,
10TH CROSS, 7TH MAIN, SHANTHINAGAR,
BENGALURU - 560 028.
3. SRI MAHESH,
S/O LATE PADMA,
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WP No. 26998 of 2023
AGED MAJOR, R/AT NO.406/2
10TH CROSS, 7TH MAIN,
SHANTHINAGAR, BENGALURU - 560 028.
4. SMT ANUSUYA,
W/O K G VENUGOPAL,
AGED ABOUT 64 YEARS,
R/AT NEAR NIGM SCHOOL, MADDUR ROAD,
KUNIGAL TOWN, TUMKUR DISTRICT-572130.
5. SMT BHARATHI,
W/O SRI A VENKATACHALAPATHI,
AGED ABOUT 61 YEARS,
R/AT NO.768, 14TH CROSS,
J P NAGAR FIRST PHASE,
BENGALURU - 560 078.
6. SMT UMADEVI,
W/O SRI B L RAJAGOPAL,
AGED ABOUT 58 YEARS,
R/AT NO.8/2, 2ND CROSS, R V S LAYOUT,
SHESHADRIPURAM, BENGALURU - 560 020.
7. SMT KALPANA GOPINATH,
D/O LATE G M KRISHNAPPA,
W/O SRI GOPINATH,
AGED ABOUT 56 YEARS,
R/AT NO.523, OTC ROAD,
AKKIPETE CIRCLE, BENGALURU - 560 053.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED AS PER ANNEXURE-H PASSED BY THE LEARNED XIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
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WP No. 26998 of 2023
(CH-22) (MAYO HALL UNIT) DATED 06.10.2023 ON IA FILED BY
THE DEFENDANT NO.3 IN OS NO.25395/2020 CONSEQUENTLY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner/plaintiff in O.S.No.25395/2020 on
the file of XIII Additional City Civil and Sessions Judge,
Bengaluru is before this Court against the order dated
06.10.2023 allowing I.A., filed under Section 151 of Code of
Civil Procedure (for short hereinafter referred to as 'CPC') to
recall the order dated 15.03.2021 and seeking permission to
file the written statement by the third defendant.
2. Heard Sri. G.V.Chandrashekar, learned Senior
counsel for Smt.A.Apeksha B., learned counsel for the
petitioner. Perused the Writ Petition papers.
3. Learned Senior counsel for the petitioner would
submit that the suit of the petitioner/plaintiff is one for specific
performance of agreement of sale dated 26.02.2008 in respect
of the suit schedule property. It is submitted that defendants
No.2 and 3 appeared through their counsel and filed vakalath
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on 30.01.2021 and their prayer for extension of time to file the
written statement was rejected on 15.03.2021. It is submitted
that thereafter defendants No.2 and 3 participated in the
proceedings and they also filed objections on I.A.No.3 filed by
the petitioner/plaintiff. Pointing out order sheet dated
16.09.2023, it is submitted that taking note of the fact that
defendants No.2 and 3 have not filed the written statement;
the plaintiff has closed his side of the evidence, heard the
arguments of the plaintiff and the suit was posted for
defendant's arguments by 21.09.2023. Thereafter, on
21.09.2023 the suit was posted for judgment to 29.09.2023.
On 29.09.2023, at the request of defendant No.3 the case was
called out in the open Court and defendant No.3 filed I.A. under
Section 151 of CPC to set aside the order dated 15.03.2021 to
take written statement of defendant No.3 on record.
4. Learned Senior counsel for the petitioner would
contend that statutory period provided under Order VIII Rule 1
of CPC had expired long back and when the suit is set-down for
judgment, the Trial Court ought not to have entertained the
application of defendant No.3. Further, learned Senior counsel
would submit that no reasons, much less valid reasons are
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assigned to accept the written statement of defendant No.3
filed belatedly. Learned Senior counsel would submit that
allowing I.A. permitting defendant No.3 to accept the written
statement of defendant No.3 would put back the suit to the
stage of framing issues which would adversely affect the
petitioner/plaintiff. Thus, he prays for allowing the Writ Petition
and to reject the I.A. filed by respondent No.3 filed under
Section 151 of CPC.
5. Having heard the learned Senior counsel for the
petitioner and on perusal of the petition papers, this Court is of
the view that no grounds are made out to interfere in the
discretion exercised by the Trial Court in accepting written
statement filed by defendant No.3.
6. The suit of the petitioner/plaintiff is for specific
performance of agreement of sale dated 26.02.2008 in respect
of the suit schedule property. The rights of the parties over
immovable property is involved in the suit in question. It is
true that defendant No.3 failed to file written statement within
time in terms of order VIII Rule 1 of CPC. The Hon'ble Apex
Court in KAILASH v/s NANHKU AND OTHERS reported in
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(2005) 4 SCC 480 has held that provision of Order VIII Rule 1
of CPC is not mandatory and it is directory. The affidavit
accompanying application filed by defendant No.3 indicates that
due to Covid-19 pandemic, defendant No.3 was unable to
contact her counsel to give instructions to file written
statement. It is also an admitted fact that when the application
was filed by defendant No.3, the suit was reserved for
judgment. The trial Court, taking note of the judgment of the
Hon'ble Apex Court in K.K.VELUSWAMY v/s
N.PALANISWAMY reported in (2011) 11 SCC 275 and
principles laid down therein, rightly exercising discretionary
jurisdiction permitted defendant No.3 to file written statement.
In exceptional cases, the trial Court could reopen the case even
though the matter is reserved for judgment. In the instant
case as the rights of the parties in immovable property is
involved, parties are to be given one opportunity to contest the
matter.
7. In the above circumstances, I do not find any
reason to interfere with the impugned order. Accordingly, the
writ petition stands rejected.
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The suit is of the year 2018, the Trial Court shall
endeavor early disposal of the suit with the co-operation of the
parties and their learned counsels.
Sd/-
JUDGE
GVP
