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Karnataka High Court · body

2018 DIGILAW 71 (KAR)

S. C. Nagaveni v. T. G. Nagesh

2018-01-09

B.VEERAPPA

body2018
ORDER : The defendants 1 and 2 have filed the present writ petitions against the order dated 23.11.2017, passed on I.A.No.5 made in O.S.No.9863/2015, rejecting the application filed under Section 151 of the Code of Civil Procedure, by the defendants 1 and 2, to file the written statement by condoning the delay. 2. The respondent No.1, who is the plaintiff before the Trial Court, filed O.S. No. 9863/2015 for specific performance to enforce the agreement dated 8.7.2013, contending that the defendants 1 to 4 are the owners and defendant No.5 is the builder, who in a joint venture, have developed the property bearing BBMP Katha No.97/104/2A situated at Hennur Village, Hennur Bagalur Main Road, Bengaluru. The defendants have executed an agreement to sell a flat in favour of the plaintiff for a sale consideration of Rs.56 lakhs and have received a sum of Rs.30 lakh as advance on the date of the agreement. In spite of repeated requests made, the defendants have failed to execute the sale deed. Hence, the plaintiff has filed suit for specific performance of the agreement or in the alternate to refund the advance amount with 24% interest. 3. The defendants 5 and 6 filed written statement. The defendants 1 to 4 have not filed written statement. When the matter was posted for cross-examination of PW1, at that stage, the defendants 1 and 2 filed an application under Section 151 of the Code of Civil Procedure, to permit them to file written statement by condoning the delay, contending that believing the developer’s words they could not follow the case regularly and when they enquired about the status of the case from the developer, it was informed that the case is not settled for the reasons best known to him. The defendant No.2 being a senior citizen, due to his age factor and believing the assurance made by the developer, could not file written statement within the time stipulated. Since the developer is not protecting and safeguarding their interest, the defendant No.1 and 2 decided to take their defense. Therefore, in the first week of October, 2017 they obtained no-objection from the previous advocate on record and engaged the present advocate. Thereafter, the written statement was prepared and filed along with the application. 4. Since the developer is not protecting and safeguarding their interest, the defendant No.1 and 2 decided to take their defense. Therefore, in the first week of October, 2017 they obtained no-objection from the previous advocate on record and engaged the present advocate. Thereafter, the written statement was prepared and filed along with the application. 4. The said application was opposed by the plaintiff contending that the defendant Nos.1 and 2 colluding with the developers are dragging the matter, by filing the application at that belated stage. It is the case of the plaintiff that on 29.1.2016 though the defendants 1 and 2 appeared through their counsel, did not file written statement and the matter was posted for plaintiff’s evidence on 24.6.2016. The plaintiff got examined himself as PW1 and the matter was posted to 22.9.2016 for his cross examination. At that stage, the defendants 5 and 6 filed their written statement upon condonation of delay. After framing of issues, the plaintiff again got examined himself on 21.9.2017 and the matter was posted for cross-examination of PW1 on 4.10.2017. As the defendants did not cross-examine PW1, the matter was again adjourned to 12.10.2017 for cross-examination of PW1 finally. On that day, the defendants 1 and 2 filed the present application under Section 151 of the Code of Civil Procedure to permit them to file written statement by condoning delay. There is no reason to condone the delay of 21 months in filing the written statement. Therefore, the plaintiff sought for dismissal of the application. 5. The Trial Court considering the application and objections, by the impugned order, dismissed the application filed by the defendants 1 and 2. Hence, the present writ petitions are filed. 6. I have heard the learned counsel for the parties to the lis. 7. Sri. Byregowda N., the learned counsel appearing on behalf of Sri. Krishna Murty V, the learned counsel for the petitioners contended that the impugned order passed by the Trial Court rejecting the application to file the written statement is erroneous and contrary to the material on record. The Trial Court has relied upon the judgment of the Supreme Court in the case of Kailash Vs. Krishna Murty V, the learned counsel for the petitioners contended that the impugned order passed by the Trial Court rejecting the application to file the written statement is erroneous and contrary to the material on record. The Trial Court has relied upon the judgment of the Supreme Court in the case of Kailash Vs. Nanhku & Others reported in (2005) 4 SCC 480 , wherein it is held under the provisions of Order 8 Rule 1 of the Code of Civil Procedure that only in exceptional cases the defendants can be permitted to file written statement after expiry of statutory period. He would further contend that the delay was due to the fact the developer has misled the defendants 1 and 2 on the ground that the developer was trying to settle the matter amicably. The defendants 1 and 2 believed the statement of the developer and due to lack of knowledge and proper information did not file the written statement within time. The Trial Court ought to have allowed the application and permitted the defendants 1 and 2 to file written statement to defend their right in respect of the immovable property. Therefore, he sought to quash the impugned order by allowing the writ petitions. 8. Per contra, Sri. Chandramohan J.G., the learned counsel appearing for the respondent No.1/plaintiff sought to justify the impugned order and contended that though all the defendants appeared through their counsel very long back. The defendants 1 and 2, with an intention to drag on the matter, have filed the application. The application is belated. Hence, the writ petitions are liable to be dismissed. 9. Having heard the learned counsel for the parties, it is undisputed that the respondent No.1, who is the plaintiff before the Trial Court, filed the suit for specific performance to enforce the agreement dated 8.7.2013. Though the defendants 5 and 6 filed the written statement, the defendants 1 and 2 did not file the written statement on the ground that they believed the words of the developer that the matter was likely to be settled. Therefore, they could not follow the case. On coming to know that the matter is not yet settled, the defendants 1 and 2 obtained no-objection from the counsel and engaged a new counsel in the first week of October, 2017 and filed an application. Therefore, they could not follow the case. On coming to know that the matter is not yet settled, the defendants 1 and 2 obtained no-objection from the counsel and engaged a new counsel in the first week of October, 2017 and filed an application. Though there is delay in filing the written statement, the fact remains that the rights of the parties are involved in respect of the suit schedule property, more fully described in schedule ‘B’ to the plaint, to an extent of 548 sq. ft undivided share of right, title and interest, with one residential apartment/flat bearing No.F-12, 1st floor, 3 BHK, with super built up area and exclusive rights on garden area situated by the side of the said flat in the building complex Golden Meadowss. 10. In the case of Kailash (stated supra), in exceptional cases, the defendants can be permitted to file written statement after expiry of statutory period of 90 days. The Trial Court proceeded to reject the application mainly on the ground that the application is filed after a lapse of 21 months. Therefore, it cannot be permitted. Admittedly, in the present case, there is a delay of 21 months in filing the application and the defendants 1 and 2 have explained in the affidavit that they are innocent and old and they were believing the words of the developer who had assured that there will be a settlement between the plaintiff and the defendants and that they are not aware of the fact. Merely because there is a delay in filing the application, it cannot be a ground to dismiss the application. The Trial Court ought to have given an opportunity to the petitioners by imposing reasonable costs. 11. The Hon’ble Supreme Court while considering the provisions under Order VIII Rule 1 of the Code of Civil Procedure in the case of Sandeep Thapar Vs. Sme Technologies (P) Ltd. reported in AIR (2014) SC 302 relying upon its earlier judgment in the case of Kailash (stated supra), has held as under: “Filing the written statement under Order VIII Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of CPC is couched in negative form, it does not specify any penal consequences flowing from the non10 compliance. The provision being in the domain of the Procedural law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away. Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of exception, for the reasons to be assigned by the defendant also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.” 12. In view of the law declared by the Hon’ble Supreme Court, it is clear that the provisions of Order VIII Rule 1 of Code of Civil Procedure is not a mandatory, it is only a directory. The filing of the written statement is to expedite and not to scuttle the hearing. It does not impose an embargo on the power of the Court to extend the time. The filing of the written statement is to expedite and not to scuttle the hearing. It does not impose an embargo on the power of the Court to extend the time. The defendants 1 and 2 have made out a case, the circumstances which are exceptional, occasioned by reasons beyond the control of the defendants 1 and 2 and grave injustice would be occasioned if they are not allowed to file the written statement. Therefore, the application filed by the defendants 1 and 2 is ought to be allowed. It is also clear that the defendants 1 and 2 have dragged the matter for more than 21 months without filing the written statement. Therefore, the defendants have to pay costs of the litigation to the plaintiff upon dragging the proceedings, for a sum of Rs.15,000/- (Rupees fifteen thousand only) on the next date of hearing. 13. For the reasons stated above, the writ petitions are allowed. The impugned order passed by the Trial Court dated 23.11.2017 passed on I.A.No.5 in O.S.No.9863/2015, is quashed. I.A.No.5 made in O.S.No.9863/2015 is allowed, subject to payment of cost of Rs.15,000/- (Rupees fifteen thousand only) payable by the defendants 1 and 2 to the plaintiff on the next date of hearing, i.e. on 18.1.2018. If the defendants 1 and 2 have not already filed the written statement, they are directed to file the same on 18.1.2018 without fail. Ordered accordingly.