A IN THE HIGH COURT OF KARNATAKA AT BANGg5L'I,ORE DATED 'i'H¥S "me 06"" DAY OF BEFORE THE HON'BLE MR. JUSTICE dBy'RyAsRE1}o¥s Atiousjtz t WRIT PETITION No. oF:oo9 I d B ETWEEN : M.L. Narasimhaswamy, _ is S/o Late M.L. Narahari Rao, V ' Aged about 65 years, " Residing at No.~'i'96/.y'I; _ Abhishek Ape-rf'mendts;;'. ' ._ FlatNo.I, Gi'Oufii,dFfoo'i'»' ._ V' Margosa. Ma1Iesh,warat_n,"'dvd'._«V _ Banga1ore_--'56O 055:,"--t.. " (By Shti. S()v'1f1:l4dSL'in(i£ViI7£1 Advocate) W;'.oA'DVr. Aged._abov_u-1 ~5.6}yeats, jResiding awmred States of America, » Represented by her Attorney Holdr, I Indira Devi, '' .wm:;c:. Sathyanarayanzt, ._'_'""Agc:d about 59 years, d .._"'R'esiding at No.8()l, 11 Stage, @ ...PETIT¥ONER 12%" 'A' Main, JP. Nagar, Bangaiore -- 78. ...RESPONDENT
(By Shri. A. Madhusudhan Rao, Advocate)
This Writ Petition is fiied under ./.’rrtic.1<es 227 of the ix
Constitution of India praying to quashthe_,ii'npugn'eAd '–order_pdiated'
31.05.2004 vide Annexure–D passed Wi.r1"
pending on the fiie of the Addit-i._onal Civai»}*j”u.d’ge Coursg
CCH–19, Bangaiore and etc.,
This Writ Petition,corning”o’n*ford?re1iminary~-Hearing in
‘B’ Group this day, the Courtirnade —
i
Heard;~’trre..:_coiunse.i’ for petitioner and the
respondent. ” ‘ ~
2. ‘Thie,petitio’ne’rVisfithe defendant in at suit for possession
._ih0t1’gi’i. as a”su.i.t__for mandatory injunction and for deiivery
property. The petitioner had belatedly sought
to file the. writtezn statement whi_ch was rejected on the very date.
h2;id.g:one unnoticed. After a period of five years there was a
, ‘change in counsel who in turn did not notice the rejection of the
apiplication for filing the written statement. It was one year after
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his engagement, the learned counsel informed the defendant that
the written statement was not on record. The petitioner is
therefore before this Court challenging the order
the appiication in the first instance after a delay ll
3. This inordinate delay would on thefa’ce._ot”– .it_se’eni to
be a ground to reject this petition at the yth1’esholdv.-7. H:()\iize\f}ei’;’i:he”rp
learned counsel for the petitioner lW:iluld_ subrr1:i-t_ltha’lt the dispute is
between a brother and hi.s_ii’:siste3;r. 3He”~–has”i~nstituted the suit for
partition in respect of vythev…ye1’y*-yppirolpevrty’ that is being
prosecuted The learned counsel would
submit thatinl tihelabsenceo’f.;i’\Ii/1-itten statement in the present suit
thereis”a.likeliho.o_d of the suit being decreed since there are no
pleadings :i.n._i’espect of the defendant’s contention and hence
iivouid.’ploinfi-.ou;tl’llthat though time has elapsed since the first
j atternptz on the part of the petitioner to file the written statement,
{_’there”4~has been little progress in the suit and hence keeping the
ohject of the parties to file their pleadings namely to enable the
3
Court to elucidate the matter in dispute there would not be
complete adjudication if the pleadings of the (l€l’€ndElElf”«i’ll’€3_il3V§)I
placed on record. “It would have been unjust on ”
petitioner to claim such a relief at this” point of..ptime._i1f._there?had
been much progress in the suit, Since the plaintiff been,
examined in chief and the matter» is set._doi.Vn fair cross-
examination there is little caused to
the respondent if the petitioner. file the written
statement the trial Court in
accordance._.w_it’hflaiir: to is complet.e adjudication
of the dispute”.
Wh’i.lelt’hle learned counsel for the respondent would
subniit even if the suit has progressed only to the stage of
c1’ol-ss–Vexa’rtiii’ri.atior1′; the conduct of the petitioner would disentitle
j the petitioner.’ to any relief before this Court. The admitted
Qfciircumstance that the impugned order was of the year 2004 would
i disclose that there is delay of over six years and hence by no
Z
standard, can the petitioner claim that there is an attempt of
diligence on his part in seeking the relief at the hands of Vt.hi.slCourt
which would now further procrastinate the proceedings’ i.th”e _
wake of the petitioners conduct who hadiiborrowed l{e’ys”of the ” .
suit premises from the respondent to perftirirfithe’death
of their mother and had occupiedl–t:h”e.. property ille§a:ll’3iz;’a’rid is now’ i it
squatting over the same being sliowiiianlly-»_1_enierice~.would lead to
further belligerence on his part. no warrant for
interference by the ‘petition_._rrifay be dismissed with
exemplary Coistsifi. _ ” ll
“While’it”-islitifuie-Ilia!atime frame has been prescribed
under the arrie–.ndedVCodie_VofCivil. Procedure in order to ensure that
a_ systematic ‘disposal of a civil suits, it is foilowed more in
“the instant case, this is demonstrated by the
plai1i.tiff having advanced the proceedings any further than
‘”‘–._lVlh:is exarlni.ni:ation in chief. Therefore, though Order VIII Rule l of
of Civil Procedure, i908 prescribes the time frame
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within which the written statement had to be filed and the time
frame the Court could condone, within which delay be
condoned and the same having elapsed long ago;””i’hei=e__:’éejfig
further unexplained delay of over five years, ,tliougii., ythereais gin’,
attempt on the part of the counsel to t.hrow:;’tlt1ei’blati1e t’l’se>e’ai*ivi_e1′
counsel to contend that there was_”l”a.pse in”-the dete..nda_nt~.r1.otibeing.L’
informed of the non–fi_li.n.g of the—Writtenyi stateiriientktlhere is no
convincing explanation inlith._i_’s’ regard. :il*lof.ve’ver, as held by the
Apex Court .i_n~:th’e_ case; ‘ASDVOCATES BAR
ASSOCIATt’CiNi§*r:/5;i\iiVt.L imitjti.w;. UNION OF INDIA (M2
2005 KER is directory and not mandatory
and having–.._Vregai’d_ itoiitthe stage of the application the
..Vinco’n’lv<e;3ienc_e that"may..be caused to the plaintiff, since there is no
_i2npTa'irrrie.ntl .,olf._iithe progress trial as such, can be adequately
compensated' ii-inillterms of money. It is however to be noticed that
Vthe petiti__oner's conduct is totally inexcusable in having over
i'l..oo–l<'et:i the circumstance that there was no written statement on
= .»reico1'd. Since the plaintiff also mages the defendant in indolence
in not having proceeded with the suit, there is room to enable the
petitioner to file the written statement.
6. Accordingiy, the writ petition is a1.1t)tijed_’
there can be no fault found with the trial Cotirjt
the application, having regard»’t-Q the”A.ei.rc.umst’émee4_vand theik
intention behind this order, the The
triai Court is directed to fiie written
statement and to law subject
to the which is for the
benefit iIi:Y’1’1i.:i_”notithemeiounsel, on the next date of
hearing the ” « .i
….. JUDGE
ed taib/hi”. Aw i