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2014 DIGILAW 790 (KAR)

Premavathi v. S. V. Jayamma

2014-09-05

A.S.BOPANNA

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ORDER A.S. Bopanna, J. 1. The respondents 1 to 4 who are the plaintiffs in the suit have entered caveat. Considering the nature of dispute involved, the presence of respondents 5 to 9 is not necessary at this stage. Hence, the petition is taken up for consideration and disposed of by this Court. 2. The petitioner who is the defendant No. 5(b) in the suit has filed the application under Section 151 of the Code of Civil Procedure permitting her to file the written statement and contest the suit on merits. The Court below after taking note of the objections put forth by the plaintiffs has rejected the application by its order dated 25.07.2014. The Court below has taken note of the sequence and thereafter had arrived at the conclusion that the petitioner was not diligent in filing the written statement and therefore, the opportunity as sought cannot be granted at this juncture. 3. The learned counsel for the respondents 1 to 4 seeks to sustain the order by pointing out that the Court below had infact referred to all aspects of the matter including the leave granted by this Court in W.P. No. 21754/2013 and even thereafter since the petitioner was not diligent, the Court below has rejected the application. It is contended that the said decision arrived at by the Trial Court is in accordance with law laid down by the Hon'ble Supreme Court and therefore, the order does not call for interference. 4. The learned counsel for the petitioner would however refer to the sequence of events to contend that the petitioner being the mother of the deceased defendant No. 5 is aged about 76 years and after having lost her son, she was unable to comprehend all issues and take decisions in the matter and even after leave was granted to appear, she was not in a position to immediately take the decision. In the light of the contention, what is necessary to be noticed is that though the defendant No. 5 had taken part in the proceedings and prior to his death had not filed written statement that in itself cannot be held against the petitioner herein. In the light of the contention, what is necessary to be noticed is that though the defendant No. 5 had taken part in the proceedings and prior to his death had not filed written statement that in itself cannot be held against the petitioner herein. Subsequent to the death of the 5th defendant the petitioner who is the mother, sought leave to come on record which at the first instance had been rejected by the Court below, subsequently, in W.P. No. 21754/2013, this Court by order dated 21.08.2013 had permitted the petitioner. 5. It is no doubt true, immediately after the said order, the petitioner should have taken steps to file written statement. For the purpose of taking note of the delay committed by the petitioner, the said order will have to be reckoned and from the said period the delay can only be reckoned which is 10 months till the application which is filed on 10.01.2014. The Court below after taking note of the delay no doubt has arrived at the conclusion that the same cannot be condoned. 6. The discretion to be exercised shall also have to be done after taking note of the nature of dispute between the parties and the right that would be defeated if the leave sought for is not granted. In this regard the prayer in the plaint is, to declare sale deed dated 03.03.2005 which has benefit in favour of the petitioner as null and void. If such relief is granted only due to the default of the concerned defendant in not filing the written statement and if that becomes material to the decision in the suit, prejudice that would be caused would be irreparable. In such circumstance, if an opportunity is granted to file the written statement and thereafter, if a decision is taken by the Court below, the interest of justice would be met and the case would get decided on its merits. Therefore, though there is delay, considering the fact that the valuable right of the parties relating to immovable property is to be decided, an opportunity requires to be granted to the petitioner in the present case to file the written statement, but subject to terms. 7. Therefore, though there is delay, considering the fact that the valuable right of the parties relating to immovable property is to be decided, an opportunity requires to be granted to the petitioner in the present case to file the written statement, but subject to terms. 7. In this regard, it is also necessary to notice that in the issues framed, the burden that has been cast on the defendants 4 and 5 which includes the petitioner herein is by issue No. 5 therein. Hence, even if the written statement of the petitioner is accepted, the position need not be reverted to a situation of framing of the issues since the very same issues will hold good. The only opportunity which requires to be granted to the petitioner is to tender her evidence and shall be cross examined, thereafter the arguments are to be heard. Insofar as providing opportunity to the petitioner to tender the evidence, the Court below shall fix the date, which is to be adhered and if the opportunity is not utilized by the petitioner, the same is to be forfeited. Immediately thereafter the matter would be heard. Considering that the said procedure has caused inconvenience to the plaintiffs, the petitioner shall pay cost of Rs. 5,000/- to the plaintiffs before the Court below. In terms of the above the order dated 25.07.2014 (Annexure-F) stands modified. I.A. No. 24 is allowed to the extent as indicated above. The written statement filed by the petitioner who is defendant No. 5(b) in the suit shall be taken on record and the Court below by fixing the time frame shall dispose of the suit expeditiously. Costs shall be paid before the Court below on the next date of hearing. In terms of the above, the petition stands disposed of.