Writ petition challenging the Trial Court's permission to file a belated written statement in a possession suit. The High Court held the order correct, noting the provision is directory and no prejudice was shown.
Writ petitions allowed to be allowed the impugned order, inasmuch as the writ petitions were rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19th DAY OF FEBRUARY, 2020
BEFORE
THE HON’BLE MR.JUSTICE S.G. PANDIT
WRIT PETITION NO. 104322/2020 AND WRIT PETITION NO.138940/2020 (GM-CPC)
BETWEEN:
SHRI.SHASHIDHAR S/O NARAYAN SHETTY AGE: 65 YEARS, OCC: BUSINESS, R/O: MICHKAN COMPOUND, SAPTAPUR, DIST: DHARWAD.
... PETITIONER (BY SRI. J S SHETTY, ADVOCATE )
AND
... RESPONDENTS
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE ORDER DATED 27.11.2019 PASSED ON I.A.NO.4 AND 5 IN O.S.NO.281/2013 PASSED BY 1ST ADDITIONAL SENIOR CIVIL JUDGE AND CJM, DHARWAD THE COPY OF WHICH HAS BEEN PRODUCED HEREWITH AT ANNEXURE-A.
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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/plaintiff is before this Court under
Article 227 of the Constitution of India assailing the order dated 27.11.2019 passed on I.A.No.4 and 5 filed under Section 151 of CPC in O.S.No.281/2013 on the file of the I Addl. Senior Civil Judge and CJM, Dharwad by which the defendant No.2 in the suit is permitted to file written statement.
perused the writ petition papers.
The defendant No.2 stated to be sub-lessee from the defendant No.1 had appeared before the Court on 01.02.2014. As he had not filed any written statement in time, his written statement was taken as nil on 11.09.2014. After more than 5 years, when the suit was at the stage of further cross-examination of the plaintiff,
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the defendant No.2 filed two applications (IA Nos.4 and 5) under Section 151 of CPC seeking permission to file written statement by reopening the stage of the suit. In the affidavit accompanying the applications, it is stated that the defendant No.2 was under the impression that he had filed written statement which was prepared earlier. But, on verification, it has come to his notice that the written statement was not filed. Therefore, he sought permission.
that the defendant No.2 after more than 5 years filed written statement, that too when the suit was at the stage of cross-examination of the plaintiff and same would prejudice the case of the plaintiff. Hence, he prays for allowing the writ petitions.
It is alleged that the defendant No.2 is sub-lessee from the defendant No.1. The nature of the allegation made in the plaint would require the written statement by
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defendant No.2. The suit is at the stage of crossexamination of the plaintiff. At this stage, the defendant No.2 had come forward to file the written statement stating he was under the impression that he had filed written statement which was prepared earlier. If the defendant No.2 is permitted to file written statement, no prejudice would be caused to the plaintiff. On the other hand, it would facilitate the Court to adjudicate the issue involved in the suit in a proper manner. The provisions of Order VIII Rule 1 of CPC is not mandatory but it is directory. Filing of written statement is a substantial right of a party and the same cannot be scuttled or denied, only on the ground written statement is filed belatedly. The Court has to examine the nature of the suit as to whether it involves contentious issues and the stage of the suit to find out as to filing of written statement if permitted would prejudice the case of the plaintiff. Ultimately it is for the Courts to do substantial justice. Thus, I find no error in
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the order passed by the trail Court. No ground is made out to interfere with the impugned order under article 227 of the Constitution of India. Accordingly, the writ petitions stand rejected.
Sd/JUDGE
lad
3 issues framed by the court
Whether the High Court should interfere with the trial court's order permitting a belated filing of a written statement.
Whether Order VIII Rule 2 of CPC is mandatory or directory.
Whether substantial justice would be defeated if the delay in filing the written statement is condoned.
3 provisions across 2 enactments
SHRI.SHASHIDHAR S/O NARAYAN SHETTY
SRI.MADANLAL S/O VARDICHAND PORWAL
SRI.MAHESH SHETTY S/O MUDDANNA SHETTY
S.G. PANDIT
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
