Sri Lakkappa Hanamappa … vs Bhimappa Fakirappa Bulannavar on 25 August, 2009

WP No.5014/2008

4. SAKREPPA GADIGEPPA GUDASALM/\Nl

AGED so YEARS
OCQAGRICULTURE

R/O MULLUR,

TALUKA RAMDURG  A _ 
DISTRICT BELGAUM ...RESPONBE.1\l'TS  g

{BY SRTHANUMANTHAREDDY sAHUKAH;_ADy_ Ecfaié' 4' u  l
R3 AND 4 sD, R2 DEAD}   " = ..

THIS PETITION is FILED UNDER A'i2Tict.E'..§27_'~«oE 'THE = '
CONSTTTUTION OF INDIA PRAYING, To Qt';-A_sHt  ORDER'
DT.10.03.2008 ON I.A.NO.Vl IN O.S.NO.-4l,--'.2007 on THE? FILE OF'
THE CIVIL JUDGE (SR.DN.) R;A.MADUR'GP.t_AS PER ANNEXURE--A AND
I.A.NO.Vl BE ALLOWED As PRAYEDFOR AI«iD»E'1'<:_.,

THIS PETITION COMING: Vo1~i_i«7o_R :PR'EIVil1\2£:lIV~I.P§'RY HEARING 1N
'B' GROUP, THIS DAyf,i'rHE co'UR'rT.MtADEvi»THE- EQLLQWTNG:

yQEDEEiy..W
'I. The petitioynerfiiys aggrileyled  order passed by the
learned trial Jud"ge._-wherein:his application seeking permission

to file the Written state-in-ent--.._i's'«rejected and so also the order

passed o.n..lA--5  the respondent had sought for striking

ofthe éviidelnce  the petitioner on the ground that there was no

vvrittten Indeed, if the application filed by the

l  =».petition_er IP36' lisallowed then automatically the impugned order

»  at ihnnexureéfi is liable to be set aside.

   matter arises in the following manner. The petitioner

   defendant. Respondent is the plaintiff. Suit is filed for

".;.%~



WP No.5014/2008

partition and separate possession. it has to be noticed that: the

said suit was initially filed in the court of Civii Jucige,..{.si~u.n'_ii-'.'1;~at 

Saundatti and was numbered as O.S.No.64/2Q(H)3'.-._: K V'

proceeding was transferred to Ramdurgon 
Judge Court and the suit was renumbered'*asl 
It appears the petitioner--defendant.fivvas    i
that the written staternentpis filed';1.l_:'The'vi.plaintiffarespondent
adduced evidence and the defendants.

Defendant also adduced   a iidavits. At that

stage, IA--6 is fi__1ed"to  o_ftf_the evidence on the ground that
no written"lsltaterrientlliifitis'  Atliiithat point of time, the
petitioner--defendarit_lvvo'l«:e'i'upi'---.aln.d found that indeed written

statement was"nVot'v fiied. Hence, in these circumstances, an

V..appiication  Vmadel"'se.e.k«ing permission to file the written

sltateziient Whe~n:'thle' case was posted for final arguments.

 'Learned Judge having regard to the fact that there

 was consi.dVe1fahle delay in filing the application seeking

 Vpeifmiissi'on to file written statement, declined to entertain the

 _sarne"and allowed the application of the plaintiff--respondent and

h  '  thewevidence of the petitioner--defendant was struck off.

 ------
.5"



WP No.5014/2008

4. Sri.G.Balakrishna Shastry, learned counsel we
defendant submits that in the given set of 
petitioner could not file the written statement.   l 
indeed he was under the bonafide  
statement was filed. Hence, the suit wenttotria1fla.ndv"pilalifitilfelV7;
respondent was cross--examined so the

let in evidence by filing affidavoiét. it i

5. Mr. Sahukar., learned  the.' lfl..§lntiff--respondent
submits that there'  inordinate «justifies the order

passed by the trial  applications.

6. I have .given«.._ "myV,anxious considerations to the
submissionsimade in "so fa"r--._as rejection of the application

seeking permission "to'"1l"1le the written statement is concerned.

i'lfT£_'his semi; iinfthlee~case efifAsANT SATYANARAYANA HEGDE vs.

Tile 'l'iz1ANrtC';mo'joiiaecron, KARNATAKA NIRAVAR1 NEGAM

 'l'vLITD.,A§\1Dv_GTlfIEl?S reported in me 2005 KAR 5796 has ruled

 the couttts are required to be pragmatic and if plausible

 exlpllanation is forthcoming as to why written statement was not

i  the same is required to be taken on record. Having regard





 subjeet to the petitior1er--defendant paying a sum of Rs.}.0,000/--

fl

WP No.5014/2008
:5:
to the decision rendered by this court and also the Apex Court, I

am of the view that the trial Judge was not justified in rejecting

the appiication. Ultimately, it has to be noticed that.«i.t'4isVllalsuitV

for partition which is contested vigorously by the it

throughout by cross--exarnining the plai-n'tiff~--respondejnltand.a1s{j..&

by iiiing his evidence by way of aff1da';Iit,:'--i.iti':is 

plaintiff--respondent makes an ap.pllic_atiori' for of: the l'

evidence, the court also carne to thla-tywrittenvstatement is
not filed. Hence, I am of the  thleiexyiplanation which is

sought to be offeredis V_requir'ed'to be;ac_cepted'inasrnuch as the

property rights  ltheapplication is granted as
observed, the'borderlpasseld,:on_lIA--5 is also required to be set

aside. Indeed,' the plair1_tifi7+re'ebondent is entitled for cost.

  .,  pass thevfollowing:

ORDER

petition is allowed. The impugned orders at

.i{X11nexures–v15i”;and B on lAs–6 and 5 are quashed. Appiication IA-

permission to file the written statement is allowed

:57.’

r–;;””.§«'”s3~«

-a

WP No.5014/2008

as cost out of which a sum of Rs.5,000/– shall be de;3osivted_’:l\l;v.i_th

the High Court Legal Services Authority and

Rs.S,OOO/– shall be paid to the contesting she”

application filed by the plaintiff IA–5 sta’rl1ds’::r’ejec’1tedi.’AA’ ‘-

Learned trial Judge shall take theA\$irittenT,s’taterrieril} on

record and conclude the proceedilfigs”lwithin” .a1?1′ tolL1teli’:’ limit of

three months from the date ‘”of_receip”t ofiltlluijseorder. l

8. With the above obser*.!a.tions–,A thel”‘=NV1fit1..”;iletition stands

disposed of. H ‘ h _ K
Rule r1j1aVde”~a3o:sdl3l_tell ” ‘”‘

A moss

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