[Cites 3, Cited by 0]
Karnataka High Court
Mahesh Ganiger S/O Mallikarjun Ganiger vs Smt Keerthi Totad on 4 February, 2026
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NC: 2026:KHC-D:1608
WP No. 100806 of 2026
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 4TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO.100806 OF 2026 (GM-RES)
BETWEEN:
MAHESH GANIGER
S/O. MALLIKARJUN GANIGER,
AGED ABOUT 32 YEARS,
OCC. AGRICULTURE,
RESIDING AT KOLIWAD,
HUBBALLI-581195.
...PETITIONER
(BY SRI. VINAYAK MEGUNDI, ADVOCATE)
AND:
1. SMT. KEERTHI TOTAD
Digitally signed by
W/O. SUNILKUMAR TOTAD,
YASHAVANT AGED ABOUT 36 YEARS,
NARAYANKAR
Location: HIGH OCC. HOUSEWIFE,
COURT OF
KARNATAKA RESIDING AT KOCHIGERI,
SHIRAHATTI, GADAG DISTRICT-582120.
2. PAVITRA TOTAD
W/O. RAVIKUMAR TOTAD,
RESIDING AT KOCHIGERI,
SHIRAHATTI, GADAG DISTRICT-582120.
3. ISHWARAPPA METI
S/O. BASAPPA METI,
AGED ABOUT 61 YEARS,
OCC. AGRICULTURE,
RESIDING AT KOLIWAD,
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WP No. 100806 of 2026
HC-KAR
HUBBALLI TALUKA,
DHARWAD DIST-581195.
4. PRAVEEN METI
S/O. ISHWARAPPA METI,
AGED ABOUT 34 YEARS,
OCC. AGRICULTURE,
RESIDING AT KOLIWAD,
HUBBALLI TALUKA,
DHARWAD DIST-581195.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA, A) ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT,
ORDER, OR DIRECTION QUASHING AND SETTING ASIDE THE
ORDER DATED 03.01.2026 PASSED BY THE HON'BLE PRINCIPAL
SENIOR CIVIL JUDGE, HUBBALLI IN O.S. NO.316/2025.
(ANNEXURE-A) B) ISSUE A WRIT IN THE NATURE OF MANDAMUS
OR ANY OTHER APPROPRIATE WRIT, ORDER, OR DIRECTION
DIRECTING THE HON'BLE TRIAL COURT TO PERMIT THE
PETITIONER TO FILE HIS WRITTEN STATEMENT IN O.S.
NO.316/2025 AND TO TAKE THE SAME ON RECORD IN
ACCORDANCE WITH LAW; C) GRANT SUCH OTHER AND
FURTHER RELIEFS AS THIS HON'BLE COURT MAY DEEM FIT IN
THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
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NC: 2026:KHC-D:1608
WP No. 100806 of 2026
HC-KAR
ORAL ORDER
The present writ petition is filed aggrieved by the order
passed on IA in OS No.316/2025, dated 3.1.2026, by the
Principal Senior Civil Judge, Hubballi, whereby the Court had
dismissed the application seeking to condone the delay and to
file written statement.
2. The respondent Nos.1 and 2 herein had filed a suit
for partition. The petitioner/defendant No.3 had filed an
application under Order VIII Rule 1 of CPC to condone the delay
and to file the written statement. The Court had dismissed the
same by order impugned dated 3.1.2026. While dismissing the
said application, the Court had observed that the defendant No.3
had appeared before the Court on 01.08.2025 and the advocate
for defendant filed an application seeking permission of the Court
to file the written statement on 03.01.2026. The Court observed
that the plain reading of Order VIII Rule 1 of the amended CPC
says that, when the defendant fails to file the written statement,
within a period of thirty days, he shall be allowed to file the
written statement on such other day, as may be specified by the
Court, for the reasons to be recorded in writing and on payment
of such costs, as the Court deems fit, but it shall not be later
NC: 2026:KHC-D:1608
HC-KAR
than 120 days from the date of service of summons and on
expiry of 120 days from the date of service of summons, the
defendants shall be forfeited to file the written statement and the
Court shall not allow the written statement to be taken on
record. The Court had also observed that the amended proviso to
Order VIII Rule 1 of CPC is not discretionary, but it is mandatory.
The Court cannot permit to file the written statement in
exercising the inherent powers after 120 days from the date of
service of summons to the defendants. The Court had also
observed that the discretionary power of the Court after 120
days is taken away by proviso to Order VIII Rule 1 of CPC. It is
observed that when the law mandates the same, the Court
should not allow the defendants to file the written statement.
3. Learned counsel appearing for the petitioner submits
that unless the written statement is filed, it would cause lot of
hardship to the petitioner/defendant No.3 and the litigation
cannot be taken to any logical end and therefore, Court ought to
have condoned the delay and permitted to file written statement.
4. Having heard the learned counsel for the petitioner,
perused the material on record. The amended provision of Order
VIII Rule 1 of CPC reads as under:
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HC-KAR
"Provided also that where the defendant fails to file
the Written Statement within the said period of thirty
days, he shall be allowed to file the Written Statement on
such other day, as may be specified by the Court, for
reasons to be recorded in writing and on payment of such
costs as the Court deems fit, but which shall not be later
than one hundred twenty days from the date of service of
summons and on expiry of one hundred twenty days from
the date of service of summons, the defendant shall forfeit
the right to file the Written Statement and the Court shall
not allow the Written Statement to be taken on record."
5. This amendment has come into force on 05.06.2025.
After the amendment, no discretion is left with the Court to
condone the delay. The amended provision makes it clear that
the Court shall not allow the written statement to be taken on
record. The use of the word "shall" makes it very clear and the
Court has no such discretion to take the written statement after
120 days. In that view of the matter, this Court does not find
any reasons to interfere.
6. Accordingly, this Court is passing the following:
ORDER
i) The present writ petition is dismissed.
ii) All I.As.in this writ petition shall stand closed.
Sd/-
JUSTICE LALITHA KANNEGANTI
JTR
List No.: 1 Sl No.: 35
