Muniyamma vs Bangalarappa

B. Manohar, J.—Petitioner is the 5th defendant in O.S. No. 530/2009 on the file of the Civil Judge (Sr. Dn.) and JMFC, Anekal. Being aggrieved by the order dated 01-8-12012 made on I.A. No. 3, she has filed this writ petition.

Respondents No. 1 to 4 herein had filed a suit in O.S. No. 530/2009 seeking for partition and separate possession of 1/4th share by metes and bounds in respect of the suit schedule properties. In the plaint, it was contended that the suit schedule properties are the ancestral properties. The plaintiffs and defendants are entitled for 1/4th share each in respect of the suit schedule properties. The petitioner who is the 5th defendant in the suit did not file any written statement to the plaint, though notice was served on her and she had engaged the services of an advocate. Though the Court had granted time till 8-12-2010 to file the written statement, the petitioner did not filed any written statement. After a lapse of 10 months, I.A. No. 3 has been filed under Section 151 of CPC seeking permission to file the written statement and also to make a counter claim. The Trial Court after considering the matter relying upon the judgment of this court, dismissed the application I.A. No. 3 filed by the petitioner. Being aggrieved by the said order, the petitioner has filed this writ petition.

Sri U. Vigneshwara, learned counsel appearing for the petitioner contended that the order passed by the Trial Court on I.A. No. 3 is contrary to law. The Hon''ble Supreme Court in various judgments has taken a view that liberal view has to be taken permitting the defendant to file the written statement and proviso to Order VIII Rule 1 of CPC is not mandatory. Hence, the order passed by the Trial Court is contrary to law. The Court can extend time even after 90 days for filing the written statement. Hence, sought for allowing the writ petition by setting aside the order impugned.

Though the contesting respondents are served with notice, they remained unrepresented.

I have carefully considered the arguments addressed by the learned counsel for the petitioner and perused the order impugned and other relevant records.

The records clearly disclose that the plaintiffs had filed a suit seeking for partition and separate possession of 1/4th share claiming that the suit schedule properties are the joint family properties of plaintiffs and defendants. The suit was filed in the year 2009. After service of notice, the court extended time to file written statement till 08-12-2010. In spite of granting time, the petitioner has not filed any written statement to the plaint. After a lapse of more than 10 months, I.A. No. 3 was filed seeking permission to file the written statement. The Trial Court after considering the matter in detail, dismissed the said application on the ground that in the application, the petitioner has not assigned any reason to condone the delay in filing the written statement. The Hon''ble Supreme Court in a judgment reported in Zolba Vs. Keshao and Others, clearly held that extending time even after 90 days for filing the written statement cannot be a matter of right, if only exceptional circumstances have been made out, the court can permit the parties to file written statement even after 90 days. The Hon''ble Supreme Court in a judgment reported in R.N. Jadi and Brothers and Others Vs. Subhashchandra, has held as under:

"A dispensation that makes Order VIII Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order VIII, Rule 1 must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts."

The case on hand is not an exceptionally hard case. The suit has been filed for partition of the joint family properties. The other contesting parties have filed written restatement. In the affidavit filed in support of the application also no cogent reason has been assigned for the delay caused in filing the written statement. The Trial Court after considering the matter in detail rejected the application filed by the petitioner.

I find no infirmity or irregularity in the said finding. The petitioner has not made out a case to interfere with the said order. Accordingly, the writ petition is dismissed.