Defendant in a partition suit sought condonation of delay to file his written statement after 120 days from service of summons; the trial court refused under the amended Order VIII Rule 1 CPC, and the High Court upheld that refusal as mandatory.
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NC: 2026:KHC-D:1608 WP No. 100806 of 2026
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 4TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO.100806 OF 2026 (GM-RES)
BETWEEN:
MAHESH GANIGER S/O. MALLIKARJUN GANIGER, AGED ABOUT 32 YEARS, OCC. AGRICULTURE, RESIDING AT KOLIWAD, HUBBALLI-581195.
…PETITIONER
(BY SRI. VINAYAK MEGUNDI, ADVOCATE)
AND:
Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA
NC: 2026:KHC-D:1608 WP No. 100806 of 2026
HC-KAR
HUBBALLI TALUKA, DHARWAD DIST-581195.
…RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA, A) ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER, OR DIRECTION QUASHING AND SETTING ASIDE THE ORDER DATED 03.01.2026 PASSED BY THE HON’BLE PRINCIPAL SENIOR CIVIL JUDGE, HUBBALLI IN O.S. NO.316/2025. (ANNEXURE-A) B) ISSUE A WRIT IN THE NATURE OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT, ORDER, OR DIRECTION DIRECTING THE HON’BLE TRIAL COURT TO PERMIT THE PETITIONER TO FILE HIS WRITTEN STATEMENT IN O.S. NO.316/2025 AND TO TAKE THE SAME ON RECORD IN ACCORDANCE WITH LAW; C) GRANT SUCH OTHER AND FURTHER RELIEFS AS THIS HON'BLE COURT MAY DEEM FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
NC: 2026:KHC-D:1608 WP No. 100806 of 2026
HC-KAR
ORAL ORDER
The present writ petition is filed aggrieved by the order passed on IA in OS No.316/2025, dated 3.1.2026, by the Principal Senior Civil Judge, Hubballi, whereby the Court had dismissed the application seeking to condone the delay and to file written statement.
NC: 2026:KHC-D:1608 WP No. 100806 of 2026
HC-KAR
than 120 days from the date of service of summons and on expiry of 120 days from the date of service of summons, the defendants shall be forfeited to file the written statement and the Court shall not allow the written statement to be taken on record. The Court had also observed that the amended proviso to Order VIII Rule 1 of CPC is not discretionary, but it is mandatory. The Court cannot permit to file the written statement in exercising the inherent powers after 120 days from the date of service of summons to the defendants. The Court had also observed that the discretionary power of the Court after 120 days is taken away by proviso to Order VIII Rule 1 of CPC. It is observed that when the law mandates the same, the Court should not allow the defendants to file the written statement.
that unless the written statement is filed, it would cause lot of hardship to the petitioner/defendant No.3 and the litigation cannot be taken to any logical end and therefore, Court ought to have condoned the delay and permitted to file written statement.
HC-KAR
“Provided also that where the defendant fails to file the Written Statement within the said period of thirty days, he shall be allowed to file the Written Statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the Written Statement and the Court shall not allow the Written Statement to be taken on record.”
After the amendment, no discretion is left with the Court to condone the delay. The amended provision makes it clear that the Court shall not allow the written statement to be taken on record. The use of the word “shall” makes it very clear and the Court has no such discretion to take the written statement after 120 days. In that view of the matter, this Court does not find any reasons to interfere.
i) The present writ petition is dismissed.
ii) All I.As.in this writ petition shall stand closed.
Sd/JUSTICE LALITHA KANNEGANTI
List No.: 1 Sl No.: 35
JTR
1 issue framed by the court
Whether the trial court could permit filing of a written statement beyond 120 days of service of summons under the amended proviso to Order VIII Rule 1 CPC.
2 provisions across 2 enactments
Mahesh Ganiger
Smt. Keerthi Totad
Pavitra Totad
Ishwarappa Meti
Praveen Meti
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
