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2010 DIGILAW 520 (KAR)

SERIJAN v. LOKESH

2010-04-12

RAVI MALIMATH

body2010
ORDER In the suit by the respondent for specific performance an application was filed seeking acceptance of the belated written statement which came to be rejected. Hence, this petition by the defendants. 2. The learned Counsel appearing for the petitioners submits that the impugned order is bad in law and liable to be set aside. By placing reliance on the affidavit filed in support of the application he contends that his brother was mentally unsound and was taking treatment at NIMHANS and he has accordingly produced the medical certificate to the said effect. 3. The learned Counsel appearing for the respondent defends the impugned order and submits that no interference is called for. He contends that there is no reason as to why the written statement should be accepted belatedly, that the writ petition has been filed five years after the impugned order has been passed and further that the application is made at a belated stage when the evidence of the plaintiffs is in progress. 4. Heard Counsels. 5. The Trial Court while passing the impugned order took note of the fact that the brother of the defendant was undergoing treatment at NIMHANS and was mentally ill. The medical certificate shows that he was taking treatment between 2-4-2004 to 8-4-2004. Since the suit was filed in the year 2000 and the medical certificate is produced only for the period from 2-4-2004 to 8-4-2004, the Trial Court disbelieved the same, merely on the ground of delay in filing the application. 6. On hearing the Counsels and perusing the records I’am of the considered view that an appropriate relief be granted for the following reasons.- (1) The claim of the petitioners is that the delay in filing the written statement is on account of the ill-health of his brother who was undergoing treatment at NIMHANS. It is pleaded at the Bar that since the year 2000 he is undergoing treatment even as on date. He therefore submits that due to the strain on the family they were unable to meet their Counsels and give appropriate instructions. These reasons accorded by the petitioners for the delay in filing the written statement cannot be negatived merely because, the medical certificate is for a restricted period. Therefore, it is just and necessary that the application of the petitioners be considered in a favourable manner. These reasons accorded by the petitioners for the delay in filing the written statement cannot be negatived merely because, the medical certificate is for a restricted period. Therefore, it is just and necessary that the application of the petitioners be considered in a favourable manner. (2) Even though the Trial Court has reasoned its order on the basis that the medical certificates do not cover the period of limitation, I'am of the considered view that the medical treatment undergone by the brother of the defendants at NIMHANS, the existence of a Medical Certificate for each and every day in the given circumstances of this case would not be essential. In view of the circumstances involved and the economic and medical condition I'am of the considered view that justice should not only be done but should appear to have been done. It is not the application of the law but the spirit of law that would have to be taken into consideration while deciding matters such as, this. 7. The learned Counsel appearing for the respondent submits that allowing of this application would set back the entire proceedings for no fault of his. However in view of the given circumstances of the case I'am of the considered view that if appropriate costs are awarded it would partially satisfy the interest of the respondent. For the aforesaid reasons, the order dated 16-7-2004 passed in O.S. No. 317 of 2000 by the II Additional Civil Judge (Senior Division), Bangalore, is set aside. The application filed by the petitioners for acceptance of their written statement is allowed subject to payment of costs of Rs. 5,000/- to be paid to the registry within two weeks from the date of this order. Of the said sum the registry shall pay a sum of Rs. 3,000/- to the respondent and the balance be retained as costs.