Writ Petition No. 89 of 2019 · The High Court
Case Details
- 1 - NC: 2025:KHC:1316 WP No. 89 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JANUARY 2025 BEFORE THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 89 OF 2019 (GM-CPC) BETWEEN: 1. SMT ASHALATHA W/O SRI R VENKATESH AGED ABOUT 37 YEAS, RESIDING AT NO.16/6, 2ND CROSS OAD, SRASWATHIPUAM NANDINI LYAOUT BANGALORE-560096 2. SRI S GOPINATH S/O SRI S G SRINIVASAN AGED ABOUT 42 YEAS, R/AT O.08, 1ST B MAIN, 1ST BLOCK NANDINI LAYOUT BANGALORE-560096 3. SRI PRASAD S/O SRI S G SRINIVASAN AGED ABOUT 33 YEAS, R/AT O.08, 1ST B MAIN, 1ST BLOCK, NANDINI LAYOUT BANGALORE-560096 …PETITIONERS (BY SRI. GOWRISHANKAR C. AND
Legal Reasoning
SMT. GIRIJA A.S., ADVOCATES) Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1316 WP No. 89 of 2019 AND: 1. SRI SRINIVAS S/O LATE V THIMMAIAH AGED ABOUT 52 YEARS, R/AT NO.947, 12TH CROSS, BANGALORE-560 003 2. T SURESH S/O LATE V THIMMAIAH AGED ABOUT 47 YEARS, R/AT NO.947, 12TH CROSS, BANGALORE-560 003 3. SRI B G HARI S/O B V GOVINDAPPA AGED ABOUT 44 YEAAS, R/AT NO.427, 7TH A MAIN ROAD 1ST STAGE, GOKUL 1ST PHASE YESHWANTHAPURA BANGALORE-560022 4. SRI B V ANITHA W/O SRI V K NEELAKANTA AGED ABOUT 45 YERS, 1ST STAGE GOKUL 1ST PHASE YESHWANTHAPURA BANGALORE-560022 5. SMT CHIKKAMMA W/O SRI LAKKANNA AGED ABOUT 78 YERS, R/AT NEAR MYSORE BANK MADDUR ROAD, KUNIGAL TOWN, - 3 - NC: 2025:KHC:1316 WP No. 89 of 2019 KUNIGAL TALUK, KUNIGAL …RESPONDENTS (BY SRI. N. MAHALINGA BHAT, ADVOCATE FOR R1 & R2; V/O. DATED 21.12.2023, PETITION AS AGAINST R3 & R4 STANDS DISMISSED) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD 24.11.2018 VIDE ANNEXURE-F PASSED BY THE COURT OF LXIV ADDL. CITY CIVIL AND SESSION JUDGE [CH-65] AT BANGALORE CITY IN O.S.NO.457/2016 IN RESPECT OF ANNEXURE-B TO D BY ISSUING WRIT OF CERTIORARI AND ALLOW THIS WRIT PETITION BY SETTING ASIDE THE ORDER DTD 24.11.201 VIDE ANNEXURE-F AND ALLOW I.A.NO.4 TO 6 PRESENTED BY THE PETITIONER VICE ANNEXURE- B TO D AND DIRCT THE LXIV ADDL. CITY CIVIL AND SESSIONS JUDGE COURT [CCH -65] AT BANGALORE CITY TO RECEIVE THE WRITTEN STATEMENT. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD - 4 - NC: 2025:KHC:1316 WP No. 89 of 2019 ORAL ORDER The petitioners are the fourth, fifth and sixth defendants in O.S.No.457/2016 on the file of the LXIV Additional City Civil and Sessions Judge, Bengaluru City ['the civil Court']. The petitioners are aggrieved by the civil Court's order dated 24.11.2018. The civil Court by this impugned order has rejected the applications filed in I.A.Nos.IV to VI by the petitioners for recall of the civil Court's order holding that these petitioners have not filed written statement, for reopening of the case and for leave to file the written statement. The petition as against the third and fourth respondent stands dismissed as having abated and the question: whether the petition could be maintained only as against the first and second respondents, is left open to be considered along with the petition. 2. It is seen from the cause-title to the Memorandum of Writ Petition that the petitioners - 5 - NC: 2025:KHC:1316 WP No. 89 of 2019 have stated that the third to sixth respondents are placed ex-parte in the suit, and significantly, only the first and second respondents will be the contesting respondents as they are the plaintiffs. As such, the petition being dismissed as against other respondents cannot deter decision on merits, and the question for consideration is, whether the petitioners must be permitted to file the written statement enabling a contest of the suit on merits. 3. The civil Court's reasoning to reject the petitioners' applications reads as under: Perused the order sheet. It is true that, defendants not filed written statement within the 30 days from the order of service of summons. Defendants not even attempted to file within extended period of 60 days, i.e., within 90 days from the date of service of summons. Plaintiff examined himself as Pw.1 by filing affidavit. Defendants not cross-examined Pw.1. Matter was posted for judgment and adjourned for 4 dates in the same stage. Defendants not produced any documents to establish ill health of defendant No.5 as mentioned in the affidavit. Condoning the delay of more than 2 years will defeat the very purpose and object behind amendment of C.P.C., as rightly argued by the counsel for the plaintiff. There is - 6 - NC: 2025:KHC:1316 WP No. 89 of 2019 no grounds made out to condone the delay in filing written statement and permit the defendants to file written statement at this stage. Hence, point No.1 is answered in the Negative. Sri. N. Mahalinga Bhat, the learned counsel for the first and second respondents, submits that this Court must consider that the petitioners have not participated in the proceedings until the suit is listed for judgment and they have not established just reasons to explain the delay in filing the written statement. 4. It is now settled that the timeline prescribed under Order VIII of the Code of Civil Procedure, 1908 for filing written statement is not mandatory and only directory and when acceptable cause is shown, the Courts could permit written statement to be filed beyond ninety [90] days. This Court must refer to the decision of the Apex Court in Kailash v. Nankhu and others reported in [2005] 4 SCC 480 in this regard. In support of the - 7 - NC: 2025:KHC:1316 WP No. 89 of 2019 applications for leave to file the written statement after recalling the necessary order and reopening the case, the second petitioner has stated (i) that he was in charge of the conduct of the case on behalf of the petitioners, (ii) that he was suffering from jaundice at the relevant time, and (iii) that he was advised to take plant medicine rather than undergo allopathic treatment. The petitioners rely upon these circumstances to plead bona fides. 5. The civil Court has refused to accept the petitioners' case only on the ground that the first and second respondents’ rights would be defeated if these petitioners are permitted to file the written statement when the suit is listed for judgment. The first and second respondents have filed the present suit for declaration of title to a property bearing No.127, carved out of Sy.No.10 of Laggere Village, Bengaluru. The petitioners, given the nature of the plaint claim and the plausible reasons assigned to explain, must - 8 - NC: 2025:KHC:1316 WP No. 89 of 2019 have a reasonable opportunity, especially when a decision on merits in favour of these respondents would eclipse all rights that could be in these petitioners in the subject property. However, the petitioners must be put on terms that are just and reasonable. Hence, the following:
Decision
ORDER [A] The petition is allowed quashing the civil Court's impugned order dated 24.11.2018 in O.S.No.457/2016 on the file of the LXIV Additional City Civil and Sessions Judge, Bengaluru City, permitting the petitioners to file the written statement within thirty [30] days from the first date of hearing after this order, and to pay a cost of Rs.15,000/- to the first and second respondents. - 9 - NC: 2025:KHC:1316 WP No. 89 of 2019 [B] It would be needless to observe that if the petitioners default either in filing the written statement or in paying the cost as aforesaid, the civil Court shall be entitled to draw adverse inference and proceed to decide the suit in accordance with law. SD/- (B M SHYAM PRASAD) JUDGE RB