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2014 DIGILAW 1043 (KAR)

Bharathi Swamy v. S. H. Sharada

2014-12-03

B.MANOHAR

body2014
ORDER Petitioner is the defendant in O.S.No.95/2005, being aggrieved by the order dated 26-11-2012 made on I.A.No.7 by the II Civil Judge (Jr.Dn.) and JMFC, Mysore, has filed this writ petition. 2. The first respondent herein filed a suit in O.S.No.95/2005 on the file of the Civil Judge (Jr.Dn.) and JMFC, Mysore seeking for permanent injunction restraining the 1st defendant and her agents from interfering with her peaceful possession of the suit schedule property. In the said suit, an application was filed under Order 39 Rules 1 and 2 of CPC seeking for temporary injunction. The Trial Court after considering the matter in detail granted an interim order directing the parties to maintain status-quo. Though the court granted sufficient time to file written statement, the first defendant did not file any written statement. After lapse of 7 years, I.A.No.7 has been filed under Section 151 of CPC seeking permission to file written statement. In the said application, it was contended that though she was served with notice, her earlier advocate had retired from the case and she was not aware of non-filing of the written statement. Hence, she sought for condonation of delay in filing the written statement. The Trial Court after considering the matter in detail and relying on the Judgment of the Apex Court reported in AIR 2007 SC 2571 (M/s. R.N. JADI AND BROTHERS V/s. SUBHASCHANDRA) rejected the said application. Being aggrieved by the said order, the present writ petition has been filed. 3. Sri. G. Ravindra Babu, learned counsel for the petitioner contended that advocate appearing for the petitioner had not filed written statement. The petitioner being an aged lady, having no worldly knowledge, believed the words of her counsel and kept quite. Only after the earlier advocate retired from the case, she engaged another advocate, then only she came to know about non-filing of the written statement. Thereafter steps were taken to file the written statement and application I.A.No.7 has been filed seeking permission to file the written statement. But, the Trial Court without considering the case pleaded by the petitioner, rejected the application which is contrary to law and hence sought for setting aside the order passed by the Trial Court on I.A.No.7 by allowing the writ petition. 4. On the other hand, Sri. But, the Trial Court without considering the case pleaded by the petitioner, rejected the application which is contrary to law and hence sought for setting aside the order passed by the Trial Court on I.A.No.7 by allowing the writ petition. 4. On the other hand, Sri. K. Ravishankara, learned counsel appearing for the first respondent argued in support of the order passed by the Trial Court and contended that the respondent filed the suit in the year 1995 seeking for permanent injunction and also obtained an order of status quo. Though the petitioner was served with notice and vakalath was filed on 15-07-2005 itself, no steps were taken to file the written statement. The reason assigned by the petitioner will not constitute sufficient ground to condone the inordinate delay of 7 years in filing the written statement. Now the case is posted for evidence, at this stage, the petitioner cannot be permitted to file the written statement and sought for dismissal of the writ petition. 5. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records. 6. The records clearly disclose that the respondents had filed the suit in the year 2005 seeking for permanent injunction and other reliefs. Notice has been issued to the contesting defendants in the suit and vakalath has been filed on behalf of the defendants on 15-04-2005. As per the provisions of the Code of Civil Procedure, the objection has to be filed within a period of 30 days from the date of receipt of court notice/summons. However, the court has got power to extend time by another 90 days on showing sufficient cause by the defendant that she could not file the written statement within a period of 30 days. In the instant case, the written statement was sought to be filed on 17-1-2012. In the application it was alleged that her earlier advocate who had filed vakalath retired from the case and thereafter she engaged the present advocate. On verification of the records, she came to know that written statement has not been filed to the suit. The said reason assigned will not constitute sufficient ground to condone the inordinate delay of 7 years in filing the written statement. On verification of the records, she came to know that written statement has not been filed to the suit. The said reason assigned will not constitute sufficient ground to condone the inordinate delay of 7 years in filing the written statement. As contemplated under the provisions of CPC, the written statement has to be filed within 30 days and thereafter, another 90 days time is extended, within which time the written statement has to be filed. In the instant case, no cogent reason has been given to condone the inordinate delay of 7 years in filing the written statement. The petitioner has not made out any case to interfere with the order passed by the Trial Court. Accordingly, the writ petition is dismissed.