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2006 DIGILAW 722 (KAR)

BABU v. GUNDU

2006-09-06

K.L.MANJUNATH

body2006
( 1 ) PETITIONERS were defendants in O. S. No. 430/2000. Respondents were plaintiffs in the suit. In the suit, the, the 1st defendant did not file the written statement. The 2nd defendant with the permission of the court filed the written statement on 2. 9. 2004. Thereafter, the original plaintiff died and his legal-heirs were brought on record. The case was adjourned to file the written statement if any. Defendants 1 and 2 filed an additional written statement. The same was accepted by the court. Subsequently, these two applications were filed by the defendants 1 and 2 as I. A. 6 and I. A. 7. I. A. 6 was filed under order 14 Rule 1 and 2 of Civil Procedure Code, to frame an additional issue in regard to maintainability of the suit. I. A. 7 is filed under order 8 Rule 14 of Civil Procedure Code for production of documents. These two applications were objected by the legal-heirs of the plaintiffs. The trial court after hearing, rejected both the applications with cost of Rs. 200/ -. ( 2 ) BEING aggrieved by the rejection of I. A. 6 and I. A. 7, the present writ petition is filed. ( 3 ) I have heard the counsel for both the parties. ( 4 ) ACCORDING to the learned counsel for the petitioners, even if the 1st defendant had not filed the written statement, there was no bar for the 1st defendant to file the additional written statement after the L. Rs of the plaintiff were brought on record. Alternatively, he contends that even if the 1st defendant had no right to file the additional written statement, the additional written statement filed by the 2nd defendant could not have been rejected by the trial court. He further submits that by oversight the trial court had permitted the 1st defendant to file the additional written statement and when the additional written statement filed by the 1st defendant is accepted by the court below, the trial court was not justified in holding that the 1st defendant had no power to file the additional written statement. According to him, such a mistake can be rectified by the court either on an application filed by the plaintiff to delete the additional written statement filed by the 1st defendant or the court suo motu can do so by hearing both the parties. According to him, such a mistake can be rectified by the court either on an application filed by the plaintiff to delete the additional written statement filed by the 1st defendant or the court suo motu can do so by hearing both the parties. According to him, the trial court without following these procedures, while considering I. A. 6 I. A. 7 held that the 1st defendant could not have filed the written statement and based on the same, the trial court has rejected the application filed by the 2nd defendant also. ( 5 ) LEARNED counsel for the petitioners further submits that I. A. 6 and I. A. 7 were filed jointly by the defendants 1 and 2. If the court was of the opinion that the application filed by the 1st defendant as not maintainable the trial court could not have rejected the application filed on behalf of the 2nd defendant, when the second defendant had filed the written statement with the permission of the court. ( 6 ) PER contra, learned counsel for the respondents made an attempt to support the orders passed by the trial court. ( 7 ) AFTER hearing the parties, this court is of the opinion that the trial court is not justified in dismissing these two application for the following reasons; admittedly, the 1st defendant had not filed the written statement. However, the 2nd defendant had filed the written statement. Thereafter, the case was posted for filing of additional written statement. Defendants 1 and 2 have filed the additional written statement, which is taken on record by the court. By mistake the additional written statement filed on behalf of the 1st defendant was accepted, the trial court could have rejected the additional written statement filed by the 1st defendant either on all application or by suo moto the court can do so by giving an opportunity for both the parties. In the instant case, no application has been filed by the plaintiffs to delete the additional written statement filed by the 1st defendant. Similarly, the court on its own has also not passed an order rejecting the additional written statement filed by the 1st defendant by giving an opportunity for both the parties. Therefore, this court is of the opinion that the trial court is not justified in holding that the 1st defendant could not have filed the written statement. Similarly, the court on its own has also not passed an order rejecting the additional written statement filed by the 1st defendant by giving an opportunity for both the parties. Therefore, this court is of the opinion that the trial court is not justified in holding that the 1st defendant could not have filed the written statement. ( 8 ) BE that as it may, even if the court was of the opinion that the application filed on behalf of the 1st defendant either for framing of additional issue or to produce the documents as not maintainable, the application filed on behalf of the 2nd defendant could not have been rejected by the trial court, since the additional written statement filed by the 2nd defendant was proper and legal. In the additional written statement filed on behalf of the 2nd defendant of the 2nd defendant has raised a contention in regard to maintainability of the suit, therefore it was the duty of the court to frame an additional issue considering the additional written statement filed by the 2nd defendant. Without doing so, I. A. 6 is rejected. Therefore, this court has to interfere with the order passed on I. A. 6. ( 9 ) SO far as I. A. 7 is concerned, the trial court without assigning any reasons has rejected the application only on the ground that the 1st defendant could not have filed the additional written statement. The observation of the court below while rejecting I. A. 7 is also illegal and perverse. ( 10 ) IN the circumstances, the writ petition is allowed. The order passed on I. A. 6 and I. A. 7 by the Civil Judge (Jr. Dn), Belgaum are hereby set aside. I. A. 6 and I. A. 7 filed by the 2nd defendant are allowed. The trial court is directed to frame an additional issue if any arises after hearing the learned counsel for both the parties. The trial court is also directed to receive the documents filed by the 2nd defendant. The rule is made absolute.