Allowed

Sri N R Channakeshava v. Sri N G Gavi Gowda

Karnataka HC21 Mar 2024WP/7878/2021

Case brief

AI extract

What is this about?

Defendant No.2 in a partition suit sought leave to file a written statement with condonation of delay; the trial court rejected it while accepting defendant No.1(a)'s belated statement on costs. The High Court held procedural rules cannot override substantive rights and allowed filing subject to costs.

What did the court decide?

Impugned order set aside; I.A.No.VIII allowed; Trial Court directed to receive the written statement subject to payment of Rs.5,000/- cost to plaintiffs 1 and 2.

Sri N R Channakeshava Vs Sri N G Gavi Gowda — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:12340 WP No. 7878 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 7878 OF 2021 (GM-CPC)

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BETWEEN:

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SRI. N.R. CHANNAKESHAVA S/O CHANNAPPA AGED ABOUT 46 YEARS, R/OF NARUGANAHALLI VILLAGE GULUR HOBLI, TUMAKURU TALUK TUMAKURU DISTRICT.

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…PETITIONER

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(BY SRI. VENKATESH C.R., ADVOCATE)

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AND:

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SRI. N.G. GAVI GOWDA S/O G. GUDDIAH AGED ABOUT 44 YEARS,

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SMT. N.G. KEMPAGANGAMMA D/O G. GUDDIAH AGED ABOUT 41 YEARS

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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BOTH ARE RESIDING OF NARUGANAHALLI VILLAGE GULUR HOBLI TUMAKURU TALUK TUMAKURU DISTRICT.

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SMT. LAKSHMAMMA W/O G. GUDDAIAH AGED ABOUT 60 YEARS, R/OF NARUGANAHALLI VILLAGE GULUR HOBLI, TUMAKURU TALUK TUMAKURU DISTRICT.

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SRI. KEMPAIAH S/O PUTTABHAIRAPPA AGED ABOUT 87 YEARS, R/OF "SRINIVASANILAYA",

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NC: 2024:KHC:12340 WP No. 7878 of 2021

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CHETHANA EXTENSION BATAWADI, TUMAKURU DISTRICT.

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SMT. T. VIJAYA W/O NARASIMHAMURTHY GOWDA AGED ABOUT 64 YEARS, R/OF "KIRANASHRI" CHETHANA EXTENSION BATAWADI, TUMAKURU DISTRICT.

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…RESPONDENTS

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(NOTICE IS SERVED ON RESPONDENT NOS.1 TO 3;

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VIDE ORDER DATED 29.09.2023, NOTICE TO RESPONDENT NOS.4 AND 5 IS DISPENSED WTIH)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.224/2015 ON THE FILE OF HON'BLE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., AT TUMAKURU AND QUASH THE IMPUGNED ORDER DATED 10.01.2020 PASSED ON I.A NO.VIII FILED UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 IN O.S.NO.224/2015 ON THE FILE OF HON'BLE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., AT TUMAKURU AT ANNEXURE-D AND ETC.

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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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Defendant No.2 in O.S. No.224/2015 on the file of II Additional Senior Civil Judge and JMFC., Tumakuru, (henceforth referred to as the ‘Trial Court’) has filed this petition challenging an order dated 10.01.2020, by which an application (I.A No.VIII) filed by him under Section 151

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NC: 2024:KHC:12340 WP No. 7878 of 2021

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of the Code of Civil Procedure, 1908 (for short, ‘CPC’) to file a written statement by condoning the delay was rejected.

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The suit in O.S. No.224/2015 was filed for

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partition and separate possession of the plaintiffs’ share in the suit schedule properties.

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The suit was contested by defendant No.1(a).

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Defendant No.2 being the purchaser of suit item No.2 property from defendant No.4 did not file any written statement. Later, an application (I.A. No.VIII) was filed by the defendant No.2 seeking permission to file a written statement. The application was rejected by the Trial Court in terms of the impugned order. Defendant No.2 is therefore before this Court in this writ petition.

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Learned counsel for the petitioner / defendant

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No.2 submits that the defendant No.2 was not able to instruct his Advocate to file a written statement due to reasons beyond his control and therefore, he submitted

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4 - NC: 2024:KHC:12340 WP No. 7878 of 2021

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that an opportunity be granted to defendant No.2 to file a written statement as was done in the case of defendant No.1(a). He submits that when the written statement was filed belatedly by defendant No.1(a), same was allowed by the Trial Court on payment of cost of Rs.1,000/- but the application filed by the defendant No.2 to receive the written statement by condoning the delay was rejected. He submits that along with the application, the defendant No.2 had attached his written statement and therefore, he did not attempt to protract the proceedings.

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Notice of this writ petition is served on the respondent Nos.1 and 2 and respondent No.3/defendant No.1(a) and they have not entered appearance.

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The suit is filed for partition and separate possession of the suit properties.

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The defendant No.1(a) being the mother of the plaintiff Nos.1 and 2, conceded to the plaint averments. Defendant No.2 was a purchaser of suit item No.2 from

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NC: 2024:KHC:12340 WP No. 7878 of 2021

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defendant No.4. Therefore, any decree that would be passed in the suit would affect defendant No.2 than any one else and therefore, defendant No.2 had to be given an opportunity to contest the suit on merits.

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The procedural law cannot be allowed to override the substantive rights. The Hon’ble Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India [AIR 2005 SC 3353] has held that rules of procedure cannot override the substantive rights of the parties. Therefore, an opportunity has to be granted to the defendant No.2 to contest the suit on merits by establishing the contentions raised by him in his written statement. The Trial Court instead of rejecting the application (I.A. No.VIII) filed by the defendant No.2 must have put him to terms just as it did in respect of the application filed by defendant No.1(a) to file her written statement.

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In that view of the matter, this petition is allowed. The impugned order dated 10.01.2020 passed by

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6 - NC: 2024:KHC:12340 WP No. 7878 of 2021

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the II Additional Senior Civil Judge and JMFC., Tumakuru, on I.A. No.VIII in O.S. No.224/2015 is set aside and the application (I.A. No.VIII) filed by the defendant No.2 to file the written statement by condoning the delay in filling it, is allowed and the Trial Court is directed to receive the written statement filed by the defendant No.2 / petitioner herein on record. This is, however, subject to the condition that the defendant No.2 shall pay cost of Rs.5,000/- (Rupees Five Thousand only) payable to plaintiff Nos.1 and 2 before the Trial Court on the next date of hearing. The Trial Court may frame additional issues and proceed in accordance with law. It is open for the plaintiffs to file their reply to the written statement filed by defendant No.2.

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Sd/JUDGE

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SMA

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List No.: 1 Sl No.: 31

Sri N R Channakeshava v. Sri N G Gavi Gowda

Case brief

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Sri N R Channakeshava v. Sri N G Gavi Gowda

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