G. Srinivasan and Another Vs. C.R. Rajamma and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1177876
CourtKarnataka High Court
Decided OnJun-15-2015
Case NumberWrit Petition Nos. 8384-88 of 2015 (GM-CPC) & Writ Petition No. 9307 of 2015(GM-CPC)
JudgeA.V. CHANDRASHEKARA
AppellantG. Srinivasan and Another
RespondentC.R. Rajamma and Others
Excerpt:
(prayer: these writ petitions filed under article 226 and 227 of the constitution of india praying to.(a)(i)quash the order dtd.8.1.2015 passed by the vii addl, city civil judge, bangalore in o.s.no.525/2008 on an application (unnumbered) filed by the 1st petitioner herein under order viii rule 1 read with section 151 of the code of civil procedure vide annex-a and etc.) 1. the petition filed under article 227 of the constitution of india in w.p.8384/15 relates to the order passed on an interlocutory application under section 151, c.p.c. dated 2.3.2013 refusing to condone the delay in filing the memo to adopt the written statement filed by defendant no.3 and defendant no.4 (1st petitioner herein-g.srinivasan). w.p.8385/15 relates to the order passed dated 30.1.2015 on i.a. 1c filed viii rule i read with section 151, c.p.c. by the vii additional city civil judge, bengaluru, in o s.525/08 to recall the order dated 4.12.2009 under which the written statement of the 4th defendant (1st petitioner herein) was treated as not filed. 2. w.p.8386/15 relates to the order dated 30.1.2015 passed on i.a. 17 by the same judge under section 151, c.p.c. to condone the delay in filing the memo adopting the written statement of defendant no.3. w.p.8387/15 relates to the order dated 9.2.2015 passed on i.a. 18 filed viii rule i read with section 151, c.p.c. and i.a. 19 filed by petitioners 2 and 3 under section 151, c.p.c. 3. the above applications came to be filed for condonation of delay and to recall the order dated 8.1.2015. w.p.8388/15 relates to the order dated 11.2.2015 passed on an application under section 151, c.p.c. rejecting the request of the petitioners herein to file additional written statement as against the amendment carried out to the plaint. 4. petitioners in this case are defendants 4, 6 and 7 in o.s.525/08 pending on the file of vii additional city civil judge, bengaluru. it is a suit filed for the relief of partition and separate possession of the properties described in the schedule appended to the plaint. defendant no.3 chose to file written statement well in time, denying all material averments and it was taken on record. 5. the 4th defendant is the brother of the 3rd defendant. during the pendency of the suit, 5th defendant is stated to have purchased one of the properties from defendants 4, 6 and 7. later on he was impleaded and he chose to file written statement in time. defendants 6 and 7 are none other than the children of defendant no.4. consequent upon alienation of one of the immovable properties by the 4th defendant in favour of the 5th defendant, defendants 4, 5 and 7 chose to file a memo adopting the written statement already filed by the 3rd defendant. since there was delay in filing, they had filed separate applications requesting the court to condone the delay in filing the memo. but neither the delay is condoned nor the memo is taken on record. 6. during the pendency of the applications filed by defendants 4, 6 and 7, plaintiff chose to file an application under order vi rule 17, c.p.c. seeking certain amendments to the plaint. the said application was objected and ultimately it came to be allowed, permitting the plaintiff to carry out necessary amendments to the plaint as sought for. when this application was allowed, the applications filed by defendants 4, 6 and 7 were still pending and therefore they chose to file additional written statement as against the amended portion of the plaint. this is also not taken on record. hence the petitioners are before this court challenging the said orders. 7. the 3rd defendant is the contesting defendant. the fact that he had filed written statement in time is not in dispute. the 4th defendant is none other than his brother who chose to alienate one of the properties to the 5th defendant who was later impleaded by filing an application under order i rule 10, c.p.c. 8. anyone who purchases a property during the pendency of a litigation always purchases subject to the outcome of the suit and he will run the risk as per section 52, transfer of property act. when the 3rd defendant's own brother had already filed written statement and defendants 4, 6 and 7 chose to adopt the said written statement, the court could not have rejected their application on the ground that it was virtually a written statement filed for the first time. in a suit for partition and separate possession, the defendants will have the same status as that of the plaintiffs. the court could have condoned the delay by imposing reasonable costs. but the trial court has taken an extreme view to reject the applications filed by defendants 4, 6 and 7 for condonation of delay in filing the memo adopting the written statement filed by the 3rd defendant. 9. the error so committed by the trial court can be corrected under article 227 of the constitution of india. petitioners have been able to demonstrate that the jurisdiction vested in the court has been wrongly exercised. taking into consideration the nature of the suit and the reliefs sought by the petitioners in the trial court, the petitions will have to be allowed, subject of course, to imposition of reasonable costs. ƒ 10. accordingly all the petitions are allowed, imposing cost of rs.500/- to be paid to each plaintiff by the next date of hearing, in the trial court without fail. the delay is condoned and the memo filed by defendants 4, 6 and 7 adopting the written statement filed by defendants 3 and 5 shall be taken on record. permission is accorded to file additional written statement as against the amended plaint which is taken in record.
Judgment:

(Prayer: These Writ Petitions filed under Article 226 and 227 of the Constitution of India praying to.(a)(i)quash the order dtd.8.1.2015 passed by the VII Addl, City Civil Judge, Bangalore in O.S.No.525/2008 on an application (unnumbered) filed by the 1st petitioner herein under order VIII Rule 1 read with Section 151 of the Code of Civil Procedure vide Annex-A and Etc.)

1. The petition filed under Article 227 of the Constitution of India in W.P.8384/15 relates to the order passed on an interlocutory application under Section 151, C.P.C. dated 2.3.2013 refusing to condone the delay in filing the memo to adopt the written statement filed by defendant no.3 and defendant no.4 (1st petitioner herein-G.Srinivasan). W.P.8385/15 relates to the order passed dated 30.1.2015 on I.A. 1C filed VIII Rule I read with Section 151, C.P.C. by the VII Additional City Civil Judge, Bengaluru, in O S.525/08 to recall the order dated 4.12.2009 under which the written statement of the 4th defendant (1st petitioner herein) was treated as not filed.

2. W.P.8386/15 relates to the order dated 30.1.2015 passed on I.A. 17 by the same judge under Section 151, C.P.C. to condone the delay in filing the memo adopting the written statement of defendant no.3. W.P.8387/15 relates to the order dated 9.2.2015 passed on I.A. 18 filed VIII Rule I read with Section 151, C.P.C. and I.A. 19 filed by petitioners 2 and 3 under Section 151, C.P.C.

3. The above applications came to be filed for condonation of delay and to recall the order dated 8.1.2015. W.P.8388/15 relates to the order dated 11.2.2015 passed on an application under Section 151, C.P.C. rejecting the request of the petitioners herein to file additional written statement as against the amendment carried out to the plaint.

4. Petitioners in this case are defendants 4, 6 and 7 in O.S.525/08 pending on the file of VII Additional City Civil Judge, Bengaluru. It is a suit filed for the relief of partition and separate possession of the properties described in the schedule appended to the plaint. Defendant no.3 chose to file written statement well in time, denying all material averments and it was taken on record.

5. The 4th defendant is the brother of the 3rd defendant. During the pendency of the suit, 5th defendant is stated to have purchased one of the properties from defendants 4, 6 and 7. Later on he was impleaded and he chose to file written statement in time. Defendants 6 and 7 are none other than the children of defendant no.4. Consequent upon alienation of one of the immovable properties by the 4th defendant in favour of the 5th defendant, defendants 4, 5 and 7 chose to file a memo adopting the written statement already filed by the 3rd defendant. Since there was delay in filing, they had filed separate applications requesting the court to condone the delay in filing the memo. But neither the delay is condoned nor the memo is taken on record.

6. During the pendency of the applications filed by defendants 4, 6 and 7, plaintiff chose to file an application under Order VI Rule 17, C.P.C. seeking certain amendments to the plaint. The said application was objected and ultimately it came to be allowed, permitting the plaintiff to carry out necessary amendments to the plaint as sought for. When this application was allowed, the applications filed by defendants 4, 6 and 7 were still pending and therefore they chose to file additional written statement as against the amended portion of the plaint. This is also not taken on record. Hence the petitioners are before this court challenging the said orders.

7. The 3rd defendant is the contesting defendant. The fact that he had filed written statement in time is not in dispute. The 4th defendant is none other than his brother who chose to alienate one of the properties to the 5th defendant who was later impleaded by filing an application under Order I Rule 10, C.P.C.

8. Anyone who purchases a property during the pendency of a litigation always purchases subject to the outcome of the suit and he will run the risk as per Section 52, Transfer of Property Act. When the 3rd defendant's own brother had already filed written statement and defendants 4, 6 and 7 chose to adopt the said written statement, the court could not have rejected their application on the ground that it was virtually a written statement filed for the first time. In a suit for partition and separate possession, the defendants will have the same status as that of the plaintiffs. The court could have condoned the delay by imposing reasonable costs. But the trial court has taken an extreme view to reject the applications filed by defendants 4, 6 and 7 for condonation of delay in filing the memo adopting the written statement filed by the 3rd defendant.

9. The error so committed by the trial court can be corrected under Article 227 of the Constitution of India. Petitioners have been able to demonstrate that the jurisdiction vested in the court has been wrongly exercised. Taking into consideration the nature of the suit and the reliefs sought by the petitioners in the trial court, the petitions will have to be allowed, subject of course, to imposition of reasonable costs. ƒ

10. Accordingly all the petitions are allowed, imposing cost of Rs.500/- to be paid to each plaintiff by the next date of hearing, in the trial court without fail. The delay is condoned and the memo filed by defendants 4, 6 and 7 adopting the written statement filed by defendants 3 and 5 shall be taken on record. Permission is accorded to file additional written statement as against the amended plaint which is taken in record.