Allowed

Union of India v. Smt.Venkatamma

Karnataka HC11 Aug 2014WP/3037/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed orders rejecting applications to file a belated written statement in a suit involving the Union of India. Allowing flexibility for procedural justice in State interests, the Court directed acceptance of the statement on payment of costs.

What did the court decide?

Impugned orders set aside; written statement directed to be accepted; petitioners to pay Rs. 10,000 costs to respondent No.1.

Union of India Vs Smt.Venkatamma — Civil Procedure and Limitation | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 11^TH DAY OF AUGUST, 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION Nos.3037-3038 OF 2014 (GM-CPC)

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Between:

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Union of India

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Represented by the Secretary

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Defence Department

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Raksha Bhavan

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New Delhi – 110 001

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Defence Estate Officer

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Karnataka and Goa Circle

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Kamaraja Road

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Bangalore – 560 042

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Defence Research and

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Development Organization

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Rep. by the Estate Manager

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C.V.Raman Nagar

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Bangalore – 560 93 … Petitioners

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(By Shri B.Pramod, Advocate)

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And:

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Smt.Venkatamma

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W/o Late Shamanna

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Aged about 79 years R/at Nagavarapalya C.V.Raman Post Bangalore – 560 093

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N.H.Rustumji S/o Late Homi Rustumji Aged about 67 years Proprietor Rustumji Developers G-15 and G-16, Ground Floor Richmond Tower Bangalore – 560 025

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State of Karnataka By its Revenue Department Secretary, Multistoried Building Bangalore – 560 001

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The Special Land Acquisition Officer (Defence) T.V.Tower, Vidhana Veedhi Bangalore – 560 001 … Respondents

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(Shri S.Ramamurthy, Advocate for respondent No.1 Notice to respondents 2 to 4 is dispensed with)

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These Writ Petitions are filed under Articles 226 and 227 of Constitution of India praying to quash the order dated 25.11.2013 (Annexure-A) passed by the Court of IX Additional City Civil Court and Session Judge, Bangalore in O.S. No.4335/2008 on two I.A.s filed under Section 151 of CPC.

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These Petitions coming on for Preliminary Hearing this day, the Court made the following:-

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ORDER

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Heard the learned counsel for the petitioners.

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The petitioners are said to be the Union of India and its

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undertakings. They are arrayed as defendants 4 to 6 in a pending suit. The suit was of the year 2006. It transpires that

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the suit was for declaration and mandatory injunction. The same was dismissed for non-prosecution as on 17.12.2009. Therefore, a miscellaneous petition is said to have been filed in

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December, 2010, which was ultimately allowed and the suit was restored to file in July, 2012. The petitioners had entered appearance and had been informed of the proceedings only at the stage when the suit was restored to file. Even then the petitioners had not sought to file the written statement for several months after the suit was restored to file. In the interregnum, the matter was posted for plaintiff’s evidence.

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The petitioners sought to file two applications. One to recall the order holding that there is no written statement and the matter being posted for plaintiff’s evidence and to reopen the case and grant leave to the petitioners to file written statement. That application was rejected on the ground that the written statement is sought to be filed many years after the time to file written statement, had expired. Therefore, the court had strictly applied the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and has rejected the application and it is that which is under challenge in the present petitions.

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The learned counsel for the petitioners would submit that the petitioners are the Union of India and no mala fides or want of diligence could be attributed to the petitioners. The over sight in not having contested the suit at the earliest point of time, was sought to be made good after the suit was restored in the year 2012 and there was however, a delay in filing the

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written statement, even after it was restored. It is the reason why the applications were filed. The court below ought to have allowed the applications in the interest of justice, as the interest of the State is involved and further, that no prejudice shall be caused to the respondents, since the suit was at the initial stage of the plaintiff tendering evidence, which was yet to be let in and no injustice would have been caused if the written statement had been accepted on terms and the matter decided in accordance with law. The denial of permission to file written statement, when that was the position, is not tenable, as the Court has taken a view that the provision under Order VIII Rule 1 is mandatory nature, where it is the settled legal position, that it is directory and given the circumstances of the case, the Court could have allowed the petitioners to file the written statement, on terms.

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The learned counsel for the respondents, however, would vehemently oppose the petitions and would submit that the petitioners have shown sheer negligence in the proceedings and do not deserve any lenience. It is firstly pointed out that between the years 2006 and 2009, no effort was made to contest the suit. The unfortunate circumstance that the suit was dismissed for non-prosecution and thereafter was restored with some difficulty, is sought to be taken advantage of by the petitioners, which is not permissible in law. The contention that the suit was yet at the preliminary stage and the plaintiff to tender evidence, is also no longer tenable, since plaintiff’s evidence has been recorded by the court below and it would unnecessarily protract the proceedings, if the petitioners who have not displayed their diligence in filing the written statement even at that stage that is claimed, as is evident form the fact that though the suit was restored to file in July, 2010 and the petitioners had sought to file written statement in September,

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It is contended that this would indicate a sheer want of diligence of the petitioners seeking to allegedly defend the suit, and hence, the petitions be dismissed.

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Given the circumstances of the case, in that, though the

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suit was of the year 2006, there has been little progress for the reason that it was dismissed in 2009 and restored only in the year 2012. Notwithstanding the want of diligence on the part of the petitioners, the matter was only listed for plaintiff’s evidence when the applications were said to be filed. If the applications had been received on the very same day, the matter could have been addressed on merits. In any adjudication before any Court, the merits of the case are to be addressed and to mechanically proceed with reference to procedure, is not a welcome trend. Procedure is always considered the hand maiden of justice and hence could not be given prominence. Hence, in deciding a matter on merits, even if the procedure has

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to be flexed, there is no injustice caused. Therefore, the application could have been allowed on terms, it would have enabled the court to address the merits of the case. And not a one sided adjudication, in the plaintiff’s case, alone being considered, this should be avoided. Especially, when the petitioners are seeking to protect the interest of the State and the general public. It is necessary that the application be allowed. However, on payment of cost. Accordingly, the petitions are allowed. The impugned orders of the court below are set aside. The court below to accept the written statement which is placed on record and to proceed further in accordance with law. The petitioners shall pay a sum of Rs.10,000/- to respondent No.1 on the next date of hearing before the court below, subject to which, the petitions are allowed.

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Sd/JUDGE

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AHB

Union of India v. Smt.Venkatamma

Case brief

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Union of India v. Smt.Venkatamma

Case brief

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