Allowed

Smt. Subhadra v. Gurudatt Developers

Karnataka HC11 Apr 2022WP/6533/2022

Case brief

AI extract

What is this about?

The High Court allowed the writ petition filed by a defendant in a specific performance suit. The court quashed the lower court order dismissing applications to reopen the case and condone delay. However, as the suit was posted for evidence, the writ petition was allowed to direct acceptance of the applications subject to payment of costs.

What did the court decide?

Writ petition allowed; Impugned order quashed; Trial Court directed to accept applications subject to payment of Rs. 2,000 court costs.

Smt. Subhadra Vs Gurudatt Developers — Specific Performance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF APRIL, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH WRIT PETITION NO.6533 OF 2022 (GM-CPC)

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BETWEEN:

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SMT. SUBHADRA W/O LATE P.S. ANNAIAH AGED ABOUT 82 YEARS RESIDING AT NO.5, 60 FEET KALPANA CHAWLA ROAD, BHOOPASANDRA, NEW EXTENSION, RMV II STAGE, BENGALURU-560 094.

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...PETITIONER

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(BY SRI. K.S. BHEEMAIAH, ADVOCATE)

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AND:

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GURUDATT DEVELOPERS A REGISTERED PARTNERSHIP FIRM HAVING REGISTERED OFFICE AT NO.196, 3^RD PHASE, AKSHAY DATTA NEAR CHETANA COLLEGE, VIDYANAGAR, HUBLI-580 030.

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REPTD. BY ITS MANAGING PARTNERS

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SRI. REVANASIDDAPPA S/O ANNADANAPPA RUDAGI AGED ABOUT 63 YEARS.

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SRI. GADIGAYYA HIREMATH S/O GURUPADAYYA HIREMATH AGED ABOUT 48 YEARS.

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SRI. GIRISH S/O SHANKAR KARNAL AGED ABOUT 22 YEARS.

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SRI. MITHUN S/O DIWAKAR JOSHI AGED ABOUT 50 YEARS.

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SRI. SHIVANAND S/O GURUPADAYYA HIREMATH AGED ABOUT 54 YEARS.

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RESPONDENTS 1 AND 3 TO 5 ARE REPTD. BY RESPONDENT NO.2 AS THEIR GPA HOLDER.

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SRI. P.S. ANNAIAH SINCE DEAD BY HIS LR'S.

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SMT. SUBADRA W/O LATE P.S. ANNAIAH AGED ABOUT 82 YEARS.

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SRI. NAGARAJ S/O LATE P.S. ANNAIAH AGED ABOUT 60 YEARS R/AT NO.493, 10^TH CROSS, UPPER PALACE ORCHARDS, SADASHIVANAGAR, BENGALURU-560 080.

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SMT. SHOBHA D/O LATE P.S. ANNAIAH AGED ABOUT 53 YEARS

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SMT. VEENA D/O LATE P.S. ANNAIAH AGED ABOUT 51 YEARS

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RESPONDENTS 6 TO 9 ARE RESIDING AT NO.5, 60 FEET KALPANA CHAWLA ROAD, BHOOPASANDRA, NEW EXTENSION, RMV II STAGE, BENGALURU-560 094.

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SMT. MEERA SRIDHARA BABU W/O SRIDHARABABU AGED ABOUT 61 YEARS.

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SRI. SRIDHARABABU S/O P.S. RAJU AGED ABOUT 71 YEARS

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RESPONDENTS 10 AND 11 ARE RESIDING AT NO.100C I-N BLOCK, RAJAJINAGAR, BENGALURU-560 010.

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….RESPONDENTS

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(BY SRI. M.G. SATEESHA, ADVOCATE FOR R1 TO R5; NOTICE TO R6 TO R11 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 07^TH MARCH, 2022 PASSED BY THE VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU ON IA NO.7 TO 10 IN ORIGINAL SUIT NO.4969 OF 2017, DISMISSING APPLICATIONS FILED FOR REOPEN, RECALL, SETTING ASIDE THE EX-PARTE ORDER, PERMISSION TO FILE WRITTEN STATEMENT AND CONDONE THE DELAY IN FILING WRITTEN STATEMENT OF THE PETITIONER HEREIN, WHICH IS AT ANNEXURE-K; AND ETC.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Sri. M.G. Sateesha, learned counsel accepts notice for respondents 1 to 5.

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This writ petition is filed by the defendant No.2, so also as legal representative of the defendant No.1 in Original Suit No.4969 of 2017, on the file of the VII Additional City Civil and Sessions Judge, Bengaluru (for short, hereinafter referred to as ‘trial Court’), challenging the order dated 07^th March, 2022, dismissing IAs.7 to 10.

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The relevant facts for adjudication of this writ petition are that, the suit is filed seeking relief of specific performance based on the Agreement of Sale dated 23^rd July, 2014. Defendants entered appearance and filed written statement. However, defendant No.2 was not able to file written statement. In this regard, defendant No.2 before trial Court has filed applications IA.7 under Section 151 of the Civil Procedure Code for reopening of the case from the stage of evidence; IA.8 under Section 151 of the Civil Procedure Code, seeking to recall the order; IA.9 under Order IX Rule 7 read with Section 151 of the

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Civil Procedure Code to set aside the ex-parte order; and IA.10 under Section 5 of the Limitation Act, 1963, seeking condonation of delay in filing written statement of the defendant No.2 in the suit. The said applications were contested by the plaintiff. However, the trial Court, by impugned order dated 07^th March, 2022, dismissed these applications and directed the defendant No. 1(a) to file written statement afresh. Challenging the finding recorded by the trial Court, defendant No.2 has preferred the present writ petition.

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I have heard Sri. K.S. Bheemaiah, learned counsel appearing for petitioner and Sri. M.G. Sateesha, learned counsel appearing for respondents 1 to 5.

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Sri. K.S. Bheemaiah, learned counsel appearing for the petitioner submits that the defendant No.2 has engaged the counsel and filed Vakalat for defendant No.1(a) as legal representative of late P.S. Annaiah, being the wife of late P.S. Annaiah, along with other legal representatives of defendant No.1 as defendants 1(c) and (d). However, the matter was posted for filing of written statement of defendant No.1(a).

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Learned counsel further submits that the trial Court has dismissed the applications erroneously, which requires interference in this writ petition.

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Per contra, Sri. M.G. Sateesha, learned counsel appearing for respondents sought to justify the impugned order passed by the trial court.

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Taking into consideration the arguments advanced by learned counsel appearing for parties, perusal of affidavit accompanying the application makes it clear that, defendant No.2 has properly explained the delay in filing the written statement before the trial Court as per paragraphs 3 to 8 in the affidavit. Taking into consideration the law declared by Hon’ble Apex Court in the case of SALEM ADVOCATES BAR ASSOCIATION vs. UNION OF INDIA reported in (2005)6 SCC 344, I am of the view that since the suit is filed seeking relief of specific performance, the impugned order passed by the trial court is liable to be rejected by affording an opportunity to the defendant No.2 to file written statement before the trial Court.

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However, I find force in the submission made by

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learned counsel Sri. M.G. Sateesha that the matter has been posted for evidence of defendants and at that stage, defendant No.2 has filed impugned applications. Therefore, taking into consideration the arguments advanced by the learned counsel appearing for respondents 1 to 5, this writ petition is allowed, setting aside the impugned order passed by the trial Court dated 07^th March, 2022, directing the trial Court to accept the applications, subject to payment of cost of Rs.2,000/- to be payable by defendant No.2 to respondents herein.

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Sd/JUDGE

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ARK

Smt. Subhadra v. Gurudatt Developers

Case brief

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Smt. Subhadra v. Gurudatt Developers

Case brief

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