Allowed

Sri. Ravi v. Smt. Shashikala

Karnataka HC6 Jun 2022WP/8256/2021

Case brief

AI extract

What is this about?

High Court allowed a writ petition quashing the rejection of an application to file a rejoinder. The court held that if additional written statement is permitted after remand, plaintiffs must be given opportunity to counter fresh pleadings to prevent irreparable loss.

What did the court decide?

Impugned order rejecting the replay is set aside. The petitioner/plaintiff is permitted to file rejoinder within two weeks.

Sri. Ravi Vs Smt. Shashikala — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JUNE, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.8256 OF 2021 (GM-CPC)

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BETWEEN:

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SRI. RAVI S/O LATE GARUDARANGAIAH AGED ABOUT 54 YEARS R/O K G KRISHNAPURA VILLAGE H/O BYRAPURA, KUDUR HOBLI MAGADI TALUK, RAMANAGARAM DISTRICT-562120

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SRI RAMAKRISHNA S/O LATE GARUDARANGAIAH AGED ABOUT 52 YEARS R/O K G KRISHNAPURA VILLAGE H/O BYRAPURA, KUDUR HOBLI MAGADI TALUK, RAMANAGARAM DISTRICT-562120

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SRI VIRUPAKSHAIAH S/O LATE GARUDARANGAIAH AGED ABOUT 48 YEARS R/O K G KRISHNAPURA VILLAGE H/O BYRAPURA, KUDUR HOBLI MAGADI TALUK, RAMANAGARAM DISTRICT-562120

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...PETITIONERS

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(BY SRI.SHIVARAMU.H.C, ADVOCATE)

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AND

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SMT. SHASHIKALA S/O LATE THIMMAIAH AGED ABOUT 49 YEARS R/O VENKATAIAHANAPALYA VILLAGE HAMLET OF BYRAPURA KUDUR HOBLI, MAGADI TALUK RAMANAGARA DISTRICT

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SUHAS S/O LATE THIMMARAJU R/O VENKATAIAHANAPALYA VILLAGE HAMLET OF BYRAPURA KUDUR HOBLI, MAGADI TALUK RAMANAGARA DISTRICT

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SMT RATHNAMMA W/O NATARAJ AND D/O HANUMANTHAIAH AGED ABOUT 53 YEARS R/O T G PALYA VILLAGE GULUR HOBLI, HULLENAHALLI POST TUMKUR TALUK AND DISTRICT

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...RESPONDENTS

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(BY SRI.B.S.NAGARAJ, ADVOCATE FOR R1 TO R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DT 26.2.2021 PASSED ON I.A.NO.5/2021 IN O.S.NO.182/2005 ON THE FILE OF THE LEARNED PRL. CIVIL JUDGE AND JMFC MAGADI MARKED AS ANNEXURE-H AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned writ petition is filed by the plaintiffs questioning the order of the learned Judge passed on I.A.No.5/2021 filed under Order 8 Rule 9 read with Section 151 of CPC in O.S.No.182/2005 passed by the learned Prl. Civil Judge and JMFC, Magadi vide Annexure-H.

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The present petitioners have instituted a suit in O.S.No.182/2005 seeking relief of declaration and perpetual relief of injunction. It is stated across Bar that the suit was decreed and the defendants preferred an appeal in R.A.No.179/2014. The Appellate Court allowed the appeal and remitted the matter to the Trial Court for fresh consideration. By remand, Appellate Court permitted both the defendants to cross examine P.W.1 and thereafter, to lead rebuttal evidence. After remand, the defendants

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have chosen to file additional written statement. It is in this background the plaintiffs are compelled to seek permission to file rejoinder by filing an application in I.A.No.5/2021. The said application is rejected by the learned Judge on the ground that plaintiffs are intending to file rejoinder after lapse of 12 years from the date of filing of the written statement.

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Heard learned counsel for the petitioners and learned counsel for the respondents.

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Perused the order under challenge. If after remand, the respondents/defendants are permitted to file additional written statement, then it necessarily implies that the plaintiffs are entitled to counter those fresh pleadings which are sought to be brought into under additional written statement.

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I have examined the averments made in the

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additional written statement at paragraph No.3. Some

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factual aspects are further pleaded at paragraph No.3 of the additional written statement. It is in this background this Court would find that the learned Judge committed an error. What is lost sight is that the plaintiffs had infact succeeded in the suit and plaintiffs suit was decreed. It is the defendants who preferred an appeal and in the appeal, fourth defendant, in all probability claimed that reasonable opportunity is not afforded. It is in this background, the Appellate Court set aside the judgment and decree and remitted the matter for fresh consideration. It is after remand in 2017, the defendants have filed additional written statement on 05.09.2012. If additional written statement is filed, learned Trial Judge was required to examine as to whether the plaintiffs are entitled to counter those averments.

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Though it is trite law that non-filing of rejoinder

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would not amount to admission but if plaintiffs want to

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specifically counter the averments, then an opportunity has to be given to the plaintiffs. Denial of an opportunity to counter the averments made in the additional written statement may cause irreparable loss to the plaintiffs after full fledged trial. Therefore, I would find that the entire approach adopted by learned Judge is erroneous. Learned Judge has committed an error in not permitting the petitioners to file rejoinder. Hence I pass the following;

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ORDER

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i. The writ petition is allowed . Impugned order dated 26.02.2021 passed on I.A.No.5/2021 in O.S.No.182/2005 is set aside.

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ii. The petitioner/plaintiff is permitted to file rejoinder within a period of two weeks from the date of receipt of copy of this order. Thereafter, the learned Judge shall proceed with the trial.

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iii. In view of disposal of the writ petition, I.A.No.1/2022 does not survive for consideration.

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Sd/JUDGE

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HDK

Sri. Ravi v. Smt. Shashikala

Case brief

What is this about?

What did the court decide?

Sri. Ravi v. Smt. Shashikala

Case brief

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