Sri Ramesh Kumar Vs K S Satish Kumar

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NC: 2026:KHC:10330 WP No. 16479 of 2022

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HC-KAR

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R

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF FEBRUARY, 2026

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BEFORE

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THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO. 16479 OF 2022 (GM-CPC)

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BETWEEN:

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SRI. RAMESH KUMAR S/O K.N.SURYANARAYANA SETTY, AGED ABOUT 71 YEARS, RETIRED SUB-INSPECTOR OF POLICE (WIRELESS), PRESENTLY RESIDING AT NO.5, JUMMA MASJID ROAD, AVENUE ROAD CROSS, BEHIND INDIAN BANK, BANGALORE-560 002.

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… PETITIONER

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(BY SRI. RAHUL.S.REDDY., ADVOCATE)

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AND:

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K.S.SATISH KUMAR S/O K.N.SURYANARAYANA SETTY, AGED ABOUT 57 YEARS, PRESENTLY R/AT NO.22/A, GRAMADEVATHA ROAD, MAVALLI BANGALORE-560 004.

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SMT. SHOBHA RANI W/O LATE D.S.DWARAKANATH, AGED MAJOR, R/AT NO.67, OPPOSITE RASHMI KALA BHAVAN, KATHRIGUPPE MAIN ROAD, BANASHANKARI 3^RD STAGE, BANGALORE-560 085.

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SRI. RAJASHEKAR S/O P.K.N.SURYANARAYANA SETTY, AGED ABOUT 51 YEARS,

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NC: 2026:KHC:10330 WP No. 16479 of 2022

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PRESENTLY R/AT NO.5 JUMMA MASJID ROAD, AVENUE ROAD, CROSS BEHIND INDIAN BANK, BANGALORE-560 002.

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K.S.CHANDRASHEKAR S/O K.N.SURYANARAYANA SETTY, SINCE DEAD BY HIS LR’S

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KUM. RUCHI D/O LATE CHANDRASHEKAR, AGED ABOUT 21 YEARS, R/AT NO.10-249, I FLOOR, KAMMA STREET, MADANAPALLI-517 325, CHITTOOR DISTRICT, ANDHRA PRADESH.

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K.R.NAGENDRA KUMAR S/O RAMESH KUMAR.K.S. AGED ABOUT 33 YEARS, R/AT NO.5, 1^ST FLOOR, AVENUE ROAD CROSS, JUMMA MASJID ROAD, CHICKPET, BENGALURU-560 002.

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… RESPONDENTS

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(BY SRI. SURYA PRASAD.L., ADVOCATE FOR SRI. SUDHEER.D.A., ADVOCATE FOR R1, R3 & R4; R5-SERVED)

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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE COSNTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IN O.S.NO.16790/2006 ON THE FILE OF THE LV ADDL. CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH-56) QUASH THE ORDER DTD 12.07.2022 PASSED ON I.A.NO.28 FILED BY THE PETITIONER U/S 151 CPC SEEKING PERMISSION TO FILE THE WRITTEN STATEMENT IN O.S.NO.16790/2006 ON THE FILE OF THE LV ADDL. CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH-56) VIDE ANNEXURE-E AND ALLOW THE SAID APPLICATION.

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NC: 2026:KHC:10330 WP No. 16479 of 2022

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HC-KAR

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL ORDER

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The present petition has been filed seeking to challenge an order dated 12.07.2022 passed on IA.No.28 filed under Section 151 of the Code of Civil Procedure, 1908, in O.S.No.16790/2006 by the LV Additional City Civil and Sessions Judge at Bengaluru (CCH-56) [hereinafter referred to as the ‘Impugned Order’]. By the Impugned Order, the application seeking permission to file a Written Statement after a lapse of 4745 days delay has been dismissed by the learned Trial Court.

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None appears for the respondents except counsel for respondent Nos.1, 4 and 3 (A and B), despite service. This Court by an order dated 24.08.2022, directed a stay of proceedings before the Trial Court. These directions have continued as is till today. It is not disputed by the parties that the suit was filed in the year 2006 and more

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NC: 2026:KHC:10330 WP No. 16479 of 2022

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than 20 years have lapsed. In view of the fact that the suit

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before the Trial Court which has been stayed by this Court was filed in the year 2006, this Court deems it apposite to hear and decide the matter today.

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The learned counsel for the petitioner/defendant No.2 has contended that the petitioner/defendant No.2 had filed an application seeking to place his Written Statement on record. Relying on this application, learned counsel has contended that the petitioner/defendant No.2

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was being represented by a counsel who was representing other defendants as well. However, despite instructions to that counsel, no Written Statement was filed. The learned counsel further submits that since the petitioner/defendant No.2 was not in the city until the year 2012, the petitioner/defendant No.2 was not aware of what was going on in the case. Reliance by learned counsel for the petitioner/defendant No.2 is placed on the judgment of the

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Coordinate Bench of this Court in Sri.Kempegowda Vs.

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4

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NC: 2026:KHC:10330 WP No. 16479 of 2022

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Smt.Venkamma and Others¹ , wherein in the case relied upon, the Written Statement filed after 8 years was allowed by the Court imposing costs. Thus, it is contended that the Written Statement filed by petitioner/defendant No.2 should also have been allowed to be taken on record by the learned Trial Court.

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Learned counsel for the respondent Nos.3 (A and B) submits that they are co-defendants and that they have no objection to this petition. As stated above, none appears for the remaining respondents despite service. The matter has been listed on two dates before this Court 13.01.2026 as well as 03.02.2026 and on both days, an adjournment has been sought for, or the petitioner/defendant No.2 has not appeared.

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The application that has been filed by the petitioner/defendant No.2 has sets out two grounds for the delay. Firstly, he submits that he was working in another city and came to Bengaluru only in the year 2012.

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1 WP No.41017/2016 Order Dated 21.03.2017

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NC: 2026:KHC:10330 WP No. 16479 of 2022

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Secondly, it is contended that he only had one advocate representing respondent Nos.1, 4 and 5 and he was not called for filing the Written Statement.

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The learned Trial Court after examining the application has found that it is not correct that the petitioner/defendant No.2 was not aware of the progress of the case. The learned Trial Court has referred to the sufficient number of opportunities granted to the petitioner/defendant No.2 to file his Written Statement. It has further been held that the petitioner/defendant No.2 had filed an objection to an interim application filed by defendant No.5 on 18.02.2013 and also that in the year 2015, the petitioner/defendant No.2 had also filed an affidavit before the Court. In addition, the learned Trial Court has held that no ground for condonation of delay has been made out. Thus, the application has been dismissed. Paragraph No.7 of the Impugned Order in this behalf, is extracted below:

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“7. I have gone through the entire materials on record. Admittedly, the defendant No.1, 2, 4 and 5 engaged one counsel. Among them the defendant No.1

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and 5 have filed written statement. Now this defendant No.2 is contending that recently he came to know that his written statement is not in record. But on going through the order sheet, it reveals that sufficient opportunity was given to this defendant to file his written statement. It is not possible to believe that he had no knowledge relating to the progress of this case. Records reveal that on 18.02.2013 had had filed objection to an interim application filed by the defendant No.5. Further it reveals that in the year 2015 he had filed one affidavit before the court. Such being the case, it reveals that he had every knowledge relating to the progress of the case. Now this application is filed with a delay of 4745 days. No ground is made out to condone the delay. The contention of the plaintiff that this application is filed only to drag on the case is acceptable one. Hence, the above point is answered in the NEGATIVE, and the following order is passed.

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ORDER

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IA No.28 filed by the defendant No.2 under Section 151 of CPC is hereby dismissed.

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The case is posted for arguments.”

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[Emphasis Supplied]

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The learned counsel for the petitioner/defendant No.2 has relied upon the judgment of a Coordinate Bench

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in Sri Kempegowda’s case which has while relying upon

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the judgment of Supreme Court in Kailash vs. Nanhku

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And Others² , condoned the delay in filing the Written Statement. An examination of the judgment in the

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Kempegowda’s case shows that the defendant therein

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2 (2005) 4 SCC 480

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has made an exceptional case and explained

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circumstances which are beyond the control of the defendant in the delay caused in filling of the Written Statement.

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Order VIII Rule 1 of the CPC provides for a Written Statement to be filed within 30 days, condonable and on an application, for upto 90 days. Order V Rule 1 of the CPC provides that the Written Statement shall be filed within 30 days from the date of summons and where the defendant fails to file the Written Statement, he will be allowed to file the Written Statement, within a period of 90 days from the date thereof. Thus, the Written Statement is ordinarily required to be filed within 90 days of the date of receipt of summons, unless the Court grants an extension for reasons to be recorded in writing. Order VIII Rule 1 of the CPC, as well as Order V Rule 1 of the CPC, are set out below:

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“ Order VIII Rule 1 of the CPC

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1. Written Statement.— The Defendant 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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Order V Rule 1 of the CPC

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1. Summons .— (1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:

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Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim:

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Provided further 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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8.1. In any event, in terms of the Code of Civil Procedure

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(Karnataka Amendment) Act, 2024^3* which has come into

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force on 05.06.2025, a third proviso has been inserted to

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Order V Rule 1 of CPC, which states that if the defendant does not file his Written Statement within 120 days from

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the date of receipt of the summons, his right to file the Written Statement shall be forfeited and the Written

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*An Act introduced for the expeditious disposal of civil cases and to improve

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efficiency for providing speedy justice.

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Statement will not be taken on record. The third proviso

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to Order V Rule 1 Sub-rule (1) of the CPC is extracted below:

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“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.”

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[Emphasis Supplied]

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The Supreme Court in the judgment of Atcom

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Technologies Ltd. v. Y.A. Chunawala and Co.⁴ , while granting extension of time to file Written Statement has held that the time to file Written Statement can be extended, however, in exceptional circumstances. Delay

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can be condoned by the Court but it does not mean defendant can take as much time as he can in fling the

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4 (2018) 6 SCC 639

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Written Statement. It is apposite to extract the relevant extract below:

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"20. This provision has come up for interpretation before this Court in number of cases. No doubt, the words “shall not be later than ninety days” do not take away the power of the court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from Salem Advocate Bar Assn. (2) v. Union of India [Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344] : (SCC p. 364, para 21)

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“21. … There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be wmade in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.”

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21. In such a situation, onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that writ of summons was not served till 2009?

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22. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned “by balancing the rights and equities” is far-fetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor viz. whether the respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, handmaid of justice. However, that would not mean that the defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically.

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[Emphasis Supplied]

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An examination of the application filed shows that petitioner/defendant No.2 has failed to make out any grounds for condonation of delay in filing the Written Statement. The only reason as set forth in the application/affidavit filed is that the petitioner/defendant No.2 was not in the city till 2012. Thereafter the counsel left practice and the present counsel found no Written Statement available in the case file. No details have been set out as to when the new counsel took over or why I.A.No.28 for condonation of delay was filed as late as on

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21.06.2019. The relevant extract of the Affidavit is set out

below:

“AFFIDAVIT

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2. I submit that I was working in Kolar and I came to Bengaluru only in the year 2012 and there was sole advocate for myself, defendant No.1, 4 and 5. And as I was not in station, I was not called for filing the written statement. And the said counsel joined to a company and doing chamber practice and not coming to the court. Then I took no objection from him and approached the present counsel and narrated all the facts before her. Then it is found that my written statement is not in record.

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3. I submit that I was the only earning member in the family and I was looking after the family and spent a huge amount for the family. This fact is not brought to the knowledge of this Hon'ble Court either by the defendant No.1 or other plaintiff or defendants.

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xxx xxx xxx

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5. The non-filing of written statement in time is only due to the above case bonafide reason and not intentional.

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6. I have got a very good defence on merits and if this application is not allowed, I would be put to great hardship and inconvenience. On the other hand if this application is allowed, no harm or prejudice would be caused to the other side.

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[Emphasis Supplied]

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In the present case, it is not disputed that the suit

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was filed in the year 2006. It is also not disputed that the

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petitioner/defendant No.2 was served in the year 2006 itself and filed his Vakalathnama on 29.11.2006. The order sheets of the Trial Court have been placed before this Court, which reflects that the petitioner/defendant No.2 was served sometime in the year 2007. It also reflects that three suits were filed for injunction, inter-se , the family members of the parties and that these three suits were clubbed together by the Court on 03.09.2010. The Written Statement was filed by the defendant No.1 along with an application only on 11.02.2011 subject to payment of Rs.2,000/as costs before the Trial Court. Subsequently, petitioner/defendant No.2 although was present before the Court, took multiple dates for filing of the Written Statement. The objections were filed in the year 2015. Issues were framed by the Trial Court in the matter and thereafter, the matter was proceeded for evidence. Learned counsel for the petitioner/defendant No.2 submits that the evidence has already been concluded.

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However, and as stated above, there is a 4745 days

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delay in filing the Written Statement. As has been discussed above, no sufficient cause or cogent reasons have been shown by the petitioner/defendant No.2 qua the delay.

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The petition is accordingly dismissed . All pending

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applications stand closed.

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Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA (TARA VITASTA GANJU) JUDGE

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NR /YN List No.: 1 Sl No.: 21

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Sri Ramesh Kumar v. K S Satish Kumar

Case brief

What is this about?

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Sri Ramesh Kumar v. K S Satish Kumar

Case brief

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