Allowed

Smt K Neelamma v. Sri R Jayanna

Karnataka HC4 Aug 2023WP/10621/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition quashing an order permitting a defendant to file a written statement without recording reasons or accepting an affidavit from the party. The court held the trial court erred in condoning a ten-year delay based solely on counsel's memorandum.

What did the court decide?

The writ petition was allowed and the impugned order dated 16.01.2020 allowing the application to file the written statement was set aside.

Smt K Neelamma Vs Sri R Jayanna — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC:27510 WP No. 10621 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 10621 OF 2020 (GM-CPC)

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BETWEEN:

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SMT. K NEELAMMA W/O M KRISHNA REDDY AGED ABOUT 68 YEARS R/AT NO.32, NEAR SRIRAMA TEMPLE NEW THIPPASANDRA BANGALORE - 560 075.

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…PETITIONER

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(BY SRI AKARSH KUMAR GOWDA, ADV.)

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AND:

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SRI R JAYANNA

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S/O LATE JYOTHI RUDRAPPA AGED ABOUT 66 YEARS R/AT NO.255, “CHANDRA” 2^ND CROSS, 7^TH MAIN ROAD

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Digitally signed by NANDINI B G Location: HIGH COURT OF KARNATAKA

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RBU EXTENSION, J P NAGAR, PUTTENAHALLI BANGALORE - 560 078.

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SMT. MALATHI W/O DEVARAJA, MAJOR R/AT NO.2, JUDICIAL LAYOUT, SHANKARAPPA GARDEN NO.13A, 8, ALLALASANDRA BANGALORE – 560 065.

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…RESPONDENTS

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(BY SRI THIMMARAYAPPA D.C., ADV. FOR R1 SRI C MUDDURAJ, ADV. FOR R2)

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NC: 2023:KHC:27510 WP No. 10621 of 2020

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED ON I.A.NO.8 FILED U/S 151 OF CPC IN O.S.NO.1726/2007 DATED 16.01.2020 AS PER ANENXURE-E ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN) RURAL AT BANGALORE.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner/plaintiff in O.S.No.1726/2007 on the file of the Principal Civil Judge (Jr.Dn.), Bangalore Rural District is before this Court under Article 227 of the Constitution of India, challenging the order dated 16.01.2020 on I.A.No.8 filed under Section 151 of CPC which is allowed permitting defendant No.1 to file written statement.

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Heard learned counsel for the petitioner/plaintiff and learned counsel for respondents/defendants. Perused the writ petition papers.

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Learned counsel for the petitioner would submit that

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the petitioner/plaintiff filed suit in O.S.No.1726/2007 praying for a decree of permanent injunction restraining

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the defendants from interfering with the plaintiff’s suit schedule property.

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Though respondents/defendants appeared before the

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Court and represented by their counsel, they failed to file written statement and the suit was proceeded further. The plaintiff examined P.W.1 and P.W.2 on her behalf and P.W.1 and P.W.2 were cross-examined by defendants’ counsel. When the matter was set down for arguments, defendant No.1 filed an application under Section 151 along with written statement and sought permission to file the written statement. Learned counsel for the petitioner would submit that no application for condonation of delay was filed nor affidavit of the first defendant was filed along with the application. Learned counsel appearing for the first defendant filed bald memorandum of facts without there being any explanation and the said application accompanied by the memorandum of facts is allowed. Learned counsel would submit that in the absence of acceptable reasons and without showing the cause for

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condonation of delay, the trial Court could not have allowed I.A.No.8 filed under Section 151 of CPC seeking permission to file written statement. Learned counsel for the petitioner referring to Order VIII Rule 1 of CPC would submit that the Order VIII Rule 1 of CPC requires filing of written statement within 30 days from the date of service of summons and the Court could extend time upto 90 days for reasons to be recorded in writing. Learned counsel would further submit that no reasons are forthcoming in the memorandum of facts accompanying the I.A. So also, no reasons are recorded by the learned trial Judge while permitting filing of the written statement. Thus, learned counsel would submit that the impugned order is contrary to Order VIII Rule 1 of CPC. Thus, he prays for allowing the writ petition.

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Per contra, learned counsel for the respondents/ defendants supporting the order of the trial Court submits that the petitioner/plaintiff failed to file objections to I.A.No.8, wherein the respondents sought permission to

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file written statement. Learned counsel would submit that

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the defendants cross-examined P.W.1 and P.W.2 and the written statement was formal which was allowed by the trial Court. Learned counsel inviting attention of this Court to memorandum of facts accompanying application would submit that filing of written statement was formal as such, memorandum of facts was filed. Thus, he prays for dismissal of the writ petition.

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Admittedly, the suit was at the stage of arguments.

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After completion of trial i.e., plaintiff’s evidence, the witnesses P.W.1 and P.W.2 were cross-examined by the defendants. Admittedly, till the matter was set down for arguments, the defendants had not filed their written statement.

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7. Order VIII Rule 1 of CPC reads as follows:

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“ 1.Written Statement: The defendant

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shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

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Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but, which shall not be later than ninety days from the date of service of summons.”

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In terms of the above rule, the defendants are required to file written statement within 30 days from the date of service of summons. Proviso to Order VIII Rule 1 provides that where the defendant fails to file written statement within the said period of 30 days, he shall be allowed to file the same for the reasons to be recorded in writing and it shall not be later than 90 days from the date of service of summons. The Hon'ble Apex Court has held that the above provision is not mandatory and it is directory. But the Court while accepting or permitting filing of the written statement, cannot lightly allow filing of written statement, but shall have to record reasons for such permission. A duty is cast upon the defendant who files written

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statement belatedly to assign acceptable reasons for not filing written statement till then and only on appreciating the said reasons and recording its own reasons for permitting filing of written statement, the Court could permit filing of written statement.

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In the case on hand, admittedly the written statement is not filed by the defendants till the stage of arguments. I.A.No.8 is filed under Section 151 of CPC along with memorandum of facts of the learned counsel for defendant No.1, seeking permission to file written statement. Memorandum of facts is bald and no reasons or cause is shown for non-filing of the written statement for more than 10 years. The application is not accompanied by affidavit of the party. Proper person to explain the delay for not filing written statement would be party himself. The counsel cannot replace party in such situation. The Court below has also not recorded reasons for allowing I.A., permitting filing of written statement. The order passed by the trial Court reads as follows:

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“No representation for plaintiff side. Hence, objection to I.A.8 is taken as not filed. Heard. Perused. Ground made out. I.A.8 is allowed. W.S. is received on record for addl. issue if any 4/2.”

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The trial Court records that no representation for plaintiff. Objection to I.A.No.8 is taken as not filed and allows I.A.No.8 and receives written statement. The procedure followed by the trial Court is contrary to Order VIII Rule 1 of CPC. Further, on the memorandum of facts of the learned counsel accompanying I.A.No.8 filed under Section 151 of CPC, the trial Court could not have blindly allowed the application.

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The Karnataka Civil Rules of Practice, 1967 (for short

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“1967 Rules”) is framed in exercise of the powers conferred under Section 122 of the Code of Civil Procedure, 1908 with respect to the practice and procedure of the Civil Courts. Chapter III of 1967 Rules

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deals with interlocutory matters. Rule 17 defines

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NC: 2023:KHC:27510 WP No. 10621 of 2020

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interlocutory application. Rule 18(2) would be relevant for

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the purpose of present case, which reads as follows:

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“18(1) xxxxxxxxxxxx

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xxxxxxxxxxxx

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18(2) All facts, on which an applicant relies for

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making the prayer or obtaining the relief sought in the application, shall be set out in an affidavit accompanying the application. Where,

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however, the facts on which the application is based appear from the records of the case in the Court or relate to any act or conduct of the applicant’s pleader himself, the Court may permit a memorandum of facts signed by the applicant’s pleader to be filed instead of an affidavit.

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Provided that it shall not be necessary to

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file any affidavit, but only a memorandum of facts signed by the pleader in interlocutory applications seeking any relief other than the

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NC: 2023:KHC:27510 WP No. 10621 of 2020

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reliefs of temporary injunction, attachment, arrest, appointment of guardian or the appointment of receiver or amendment of a pleadings.”

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A reading of the above rule would make it abundantly clear that a memorandum of facts signed by the applicant’s pleader could be filed if the facts on which application is based appear from the records of the case in the Court or relate to any act or conduct of the applicant’s pleader himself. But, the proviso to Rule 18 requires that an affidavit shall accompany interlocutory application where interlocutory applications seek relief of temporary injunction, attachment, arrest, appointment of guardian or appointment of receiver or amendment of a pleadings. Other than the above mentioned reliefs, under interlocutory application, memorandum of facts could accompany the interlocutory applications. But when relief sought in the application is based on the facts appear from the records of the case in the Court or relate to any act or

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conduct of the applicant’s pleader himself, memorandum of facts could be filed. But, in the present case, non-filing of written statement is not a fact appearing from the records of the case in the Court or relate to any act or conduct of applicant’s pleader himself. But, the reasons for non-filing of written statement till the stage of argument shall have to be explained by the party himself and it is not a situation where the application could be filed accompanied by memorandum of facts of the pleader.

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In the instant case, the relief sought in I.A.No.8 is seeking permission to file written statement by condoning delay. As stated above, the delay could be explained only by the party and not by the pleader or counsel.

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No ground is made out to allow I.A.No.8 and no reasons are recorded by the trial Court to allow I.A.No.8. In the absence of any cause shown or reasons assigned in the application, the trial Court committed a grave error in allowing the application.

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NC: 2023:KHC:27510 WP No. 10621 of 2020

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For the reasons recorded above, the writ petition is allowed and the impugned order dated 16.01.2020 passed

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on I.A.No.8 in O.S.No.1796/2007 on the file of the Principal Civil Judge (Jr.Dn.), Bangalore is set aside.

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Sd/JUDGE

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MPK CT:bms List No.: 1 Sl No.: 58

Smt K Neelamma v. Sri R Jayanna

Case brief

What is this about?

What did the court decide?

Smt K Neelamma v. Sri R Jayanna

Case brief

What is this about?

What did the court decide?

What the court decided

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