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2013 DIGILAW 349 (KAR)

Hanumantha Reddy v. K. Raghava Reddy

2013-03-19

A.N.VENUGOPALA GOWDA

body2013
Judgment :- 1. The respondent Nos.1 to 7 are the petitioners and respondent Nos.8 to 11 are the defendants in O.S.No.234/2006 on the file of Civil Judge (Sr.Dn.), K.G.F. The suit was filed on 26.10.2006 to pass judgment and decree of partition and separate possession. The defendants 1 and 6 filed written statement on 12.04.2007. Issues were raised based on the pleadings. PWs.1 to 3 deposed between 21.02.2009 to 28.07.2009. For the defendants, their GPA holder was examined on 21.08.2009. The plaintiffs filed I.A.7, under Order 6 Rule 17 of CPC on 23.10.2009 and the same was rejected by a order dated 02.03.2010, which was questioned in W.P.No.18453/2010 and the said petition was allowed on 31.08.2010, with a direction to the Trial Court to expedite the trial and decide the case before 18.12.2010. 2. The defendant No.4 filed an I.A. on 09.12.2010, seeking permission to file written statement, with which, his written statement was also filed. The defendants 1 and 6 filed objections to the application seeking permission to file the written statement, by condonation of delay. Said application was allowed on 07.01.2011, subject to payment of cost of `4,000/- on or before 17.01.2011. The defendant No.4 filed an application on 17.01.2011 seeking permission to deposit the costs. Despite the objections filed by defendants 1 to 6 on 20.01.2011, said application was allowed. Assailing the orders passed on 07.01.2011 and 20.01.2011, the defendants 1 and 6 have filed these writ petitions. 3. Sri. M.B. Chandra Chooda, learned advocate appearing for the petitioners contended that the Trial Court has committed material error and irregularity in allowing the application and granting permission for filing of the written statement on 09.12.2010, though suit summon was served on 31.01.2011 and the defendants 1 and 4 were represented by an advocate and the written statement was not filed even after lapse of 4 years. He submitted that the major part of trial of the suit being complete, the application accompanied by the written statement having been filed belatedly, without any explanation for the inordinate delay of more than 4 years, despite the order passed in W.P.No.18453/2010 directing the Trial Court to decide the suit before 18.12.2010, the Trial Court is not justified in allowing the application. Learned counsel further submitted that in view of the proviso under Order 8 Rule 1 of CPC, the written statement having not been filed within 90 days' period and there being no exceptional case made out, the Trial Court is unjustified in permitting the filing of written statement. Learned counsel submitted that the impugned orders being illegal, warrant interference. 4. Miss. Gowhar Unnisa, learned advocate appearing for the respondent No.10/defendant No.4, on the other hand submitted that, since the exemplary cost was awarded by the Trial Court and the trial of the suit having not taken place as per the direction issued in W.P.No.18453/2010, the defendant No.1 and plaintiffs having not questioned the orders passed by the Trial Court condoning the delay in filing of the written statement, the writ petition being devoid of merit may be dismissed. She made submission in support of the view taken by the Trial Court while passing the impugned orders. 5. Perused writ record. 6. “While allowing W.P.No.18453/2010 on 31.08.2010, taking into consideration that the suit is one for partition and separate possession, keeping in view of the provisions of the Karnataka (Case Flow Management in Subordinate Courts) Rules, 2005, the Trial Court was directed to expedite the trial and decide the suit before 18.12.2010. The Trial Court ought to have decided the suit within the said period. Instead, the application filed by the 4th defendant on 09.12.2010 seeking permission to file the written statement has been allowed. In the affidavit accompanying the said application, no reason of whatsoever nature which led to the inordinate delay in filing the written statement has been stated. The material part of the affidavit reads as follows: "2. I swear that I am not aware that the written statement is to be filed with time as contemplated under law hence there is delay in filing my written statement due to the reasons mentioned above this hon'ble court may be please to permit me to file the written statement in this case he have very Good case on merits hence this hon'ble court may be please to allow the application to meet the interest of justice and equity and law." 7. In the case of R.N. Jadi & Brothers and others Vs. Subhashchandra - (2007) 6 SCC 420 , it has been held as follows:- "14. In the case of R.N. Jadi & Brothers and others Vs. Subhashchandra - (2007) 6 SCC 420 , it has been held as follows:- "14. The word "manufacture" has been defined in Halsbury's Laws of England, 3rd Edn., Vol.29, p.23 as under: "Manufacture" has been defined as a 'manner of adapting natural materials by the hands of man or by man-made devices or machinery' and as 'the making of an article or material by physical labour or applied power'; but the practice is to accept as 'manufacture' a wider range of industrial activities than such a definition would suggest. It includes articles made in situ as well as articles made in a factory." 15. The Supreme Court of the United States of America has defined the term "manufacture" a century ago in Anheuser-Busch Brewing Assn. v. United States -207 Us 556. The definition has been followed in subsequent American, English and Indian cases. The definition reads as under: (US p.562) "Manufacture implies a change, but every change is not manufacture, and yet every change in an article is the result of treatment, labor, and manipulation. But something more is necessary.... There must be transformation; a new and different article must emerge, 'having a distinctive name, character, or use'." 8. The affidavit in support of the application does not make out any case for condonation of inordinate delay in filing the written statement. The Trial Court instead deciding he suit as per the direction issued on 31.08.2010 in W.P.No.18453/2010, without even arriving at a finding that sufficient cause has been made out and the denial to file the written statement would lead to substantial injustice, has mechanically allowed the application. There is breach of proviso under Order 8 Rule 1 of CPC. The impugned orders suffer from procedural impropriety and are also irrational. Hence, the same cannot be sustained. In the result, writ petitions are allowed and the impugned orders are quashed.