Vijay Kumar vs Hanumanthaiah and Others

Jayant M. Patel, J.—1. The present petition is directed against the order dated 11.01.2016 passed by the learned I Addl. City Civil & Sessions Judge, Bangalore City, on I.A. No. 10 in O.S. No. 5452/2005, whereby the learned Civil Judge has partly allowed the application and permitted filing of the written statement confining to para-8(a) of the averment made in the plaint but has rejected the prayer to file written statement on the other aspects.

I have heard Mr. Nishanth A.V., learned Counsel appearing for the petitioner and Mr. L.S. Venkatakrishna, learned Counsel appearing for respondent No. 15.

The contention raised on behalf of the petitioner was that after the suit was filed as back as in the year 2005, on behalf of the petitioner no written statement was filed, but the suit was concluded and the matter was carried before this Court in RFA No. 290/2009 and this Court vide order dated 18.08.2014 (Annexure ''B'') allowed the appeal and remanded the matter to the Trial Court for adjudication afresh on the point which was observed by the High Court. So far as the amendment which was to be made by the original plaintiff is concerned, the liberty was reserved to the defendants to file additional written statement, if so, advised. It was also observed by this Court that the Trial Court would be at the liberty to consider the application, if any, filed by respondent No. 13 i.e. the petitioner herein on merits and to decide the contentions of the parties and such contentions were kept open.

As per the petitioner, thereafter the written statement was filed not only to the amended portion of the plaint but also for the unamended plaint. The Trial Court instead of allowing the petitioner to file the written statement, has partly granted the relief which is erroneous. In his submission, when the suit was pending for such a long time and is to be retried as per the remand order of this Court, if the written statement is permitted to be filed by the petitioner, no prejudice would be caused and the delay can be compensated by appropriate cost. He therefore submitted that this Court may interfere.

Whereas Mr. L.S. Venkatakrishna, learned Counsel appearing for the respondent No. 15-original plaintiff, by caveat, the main contesting party, contended that when the remand was only on a limited point, the written statement could be filed on that limited point for which, the amendment was so permitted by this Court. If the written statement is permitted to be filed of unamended plaint, it would result into re-opening the tried issues which are already concluded. In his submission, there is a lapse of about nine years which cannot be viewed leniently and therefore, this Court may not interfere.

In my view, it is hardly required to be stated that the mere delay in filing written statement may not be the sole ground to reject the prayer for submission of the written statement, but whether to condone the delay or whether to consider the lapse to file written statement leniently or not, would be aspects which may fall in the arena of judicial discretion to be exercised, keeping in view the facts and circumstances of each case.

In the present case, the petitioner in response to the summons issued through the Court, did appear through lawyer. Thereafter, did not take any care to file the written statement. The suit proceeded further. The other defendants filed written statement, issues were framed, evidence was led and after full-fledged trial, the final judgment was delivered on 07.02.2009 by the Trial Court. It is only in appeal preferred before this Court by the original plaintiff, this Court found that the amendment which the original plaintiff was desirous to make in the plaint, ought to have been permitted by the Trial Court and therefore, with that limited purpose, the judgment and the order of the Trial Court was set aside and the matter was remanded to the Trial Court permitting amendment and further permitting the defendants to file additional written statement to the amended portion. When the remand was for a limited point namely amended portion of the petition, it could not be said that the remand was for all purposes. Further, merely because the observations were made by this Court that the Trial Court would be at the liberty to consider the application of the petitioner and for which the Trial Court was directed to decide in accordance with law, it cannot be said that any right was reserved or conceived to file written statement to the earlier plaint (unamended) for which the petitioner did not file at all until the suit was fully tried and the judgment was delivered.

In my view, the peculiar facts and circumstances in the present case are that the petitioner herein did not file written statement until the suit was fully tried and the judgment dated 07.02.2009 was delivered by the Trial Court. It is a different matter that this Court in appeal, remanded the matter on a limited point of amendment, for which the liberty was also reserved for the defendants including the petitioner herein to file additional written statement, but thereby it cannot be said that right of the petitioner-defendant No. 13, which was no more availed of until the judgment was delivered by the Trial Court is reopened. Further, the observations made by this Court in its judgment in first appeal dated 18.08.2014 for deciding of the application if any, made by the petitioner can also not be read to permit the petitioner to file written statement to the unamended plaint, for which the right was closed and the suit proceeded further and the judgment was also delivered. At the most, such observations of this Court could be read to mean that the application if any, made by the petitioner is to be heard and decided in accordance with law.

The Trial Court, in my view, while passing the impugned order cannot be said to have exercised the discretion in erroneous manner nor it can be said that there is any jurisdictional error on the part of the Trial Court while passing the impugned order.

Under the circumstances, it cannot be said that it would be a case for interference under Article 227 of the Constitution of India against the impugned order of the Trial Court.

The decisions upon which the reliance has been placed by the learned Counsel for the petitioner are of no help to the petitioner because in none of such cases, the suit was fully tried and the judgment was delivered and the matter was remanded on a limited point. Hence, such decision cannot be made applicable to the facts and circumstances of the present case.

In view of the above, no case is made out for interference. Hence, the present petition is dismissed.