Ajesh Kumar Shankar Judgement one

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Ajesh Kumar Shankar Judgement1

Ajesh Kumar Shankar

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 8TH DAY OF DECEMBER, 2016

BEFORE

THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

WRIT PETITION NO.16825/2016(GM-CPC)

BETWEEN:

DR A MANJAYYA SHETTY

S/O LATE RAJEEVA SHETTY

AGED ABOUT 62 YEARS,

R/AT VENUS MANOR,

KADRI KAMBLA CROSS ROAD,

NEAR KADRI VIJAYA CLINIC,

KADRI, MANGALORE-575002

D.K.DISTRICT                             … PETITIONER

(BY SRI. S.RAJASHEKAR, ADV.)

AND

  1. DR MIJARGUTHU SEETHARAMA ALVA

S/O MR.ANANDA ALVA,

AGED ABOUT 70 YEARS,

 

2. MRS. MAYA ALVA

W/O DR.MIJARGUTHU

SEETHARAMA ALVA,

AGED ABOUT 58 YEARS,

 

BOTH ARE RESIDING AT NO.19/A,

KASHINATH DHURU MARG,

SEASHELL, 2ND FLOOR,

DADAR MUMBAI-400028.

 

3. MRS. ANITHA SHETTY

W/O A MANJAYYA SHETTY,

AGED ABOUT 58 YEARS,

R/AT VENUS MAJOR,

KADRI KAMBLA CROSS ROAD,

NEAR KADRI VIJAYA CLINIC,

KADRI, MANGALORE-575002 D.K.DISTRICT

 

4. CENTRAL BANK OF INDIA

AROUZA, BUILDING, HAMPANKATTA, MANGALORE,

REPRESENTED BY ITS

SENIOR BRANCH MANAGER-575001

………….RESPONDENTS

(BY SRI. AJESH KUMAR ADV. FOR R1 & R2

VIDE ORDER DATED 29.03.2016 SERVICE OF NOTICE TO R3 AND R4 IS D/W)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 11.03.2016 PASSED ON I.A.1 IN O.S.109/2014 ON THE FILE OF SR. CIVIL JUDGE MANGALURU D.K. AT ANNEXURE-A.

THIS WRIT PETITION COMING ON FOR ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

  1. Though the matter is listed for consideration of I.A.1/16 which is filed by respondent Nos.1 and 2 for vacating the interim order granted by this court on 29.3.2016  and subsequently  extended  on various  dates,with the consent of the learned counsel on both sides, the matter is heard finally.
  2. Petitioner herein is defendant No.1 in O.S.No.109/2014. That suit is filed by the first and second respondent/plaintiff seeking recovery of a sum of Rs.8,54,000/- as shown in schedule ‘B’ along with current and future
  3. In response to the suit summons the defendants appeared, but no written statement was filed on behalf of defendant Nos.1 and 2. It is also necessary to state  at  this stage that defendant No.2 is  deleted from the array  of parties, defendant No.4 bank has already filed its  written statement. The case was set down for recording evidence. P.W.1 let in his evidence and at the stage of his cross-examination, defendant No.1/petitioner herein filed an application under Order VIII Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking to file the written statement by condoning the delay of 19 months in filing the By the impugned order dated 11.3.2016 that application has been  dismissed. Being aggrieved by the said order, defendant No.1 has preferred this writ petition.
  4. I have heard learned counsel for petitioner and learned counsel for respondent Nos.1 and 2. Notice to respondent Nos.3 and 4 has been dispensed with by order dated 29.3.2016 by this court. I have perused the  material on
  5. At the outset, learned counsel for respondent Nos.1 and 2 brought to my notice to the decision of the Hon’ble Supreme Court in the case of Kailash v. Nanhku and Ors, AIR 2005 SC 2441 and drew my attention to paragraph 44 of the said decision to submit that no extension of time could be granted for the mere asking. He submitted that there is no merit in the writ petition and the same may be
  6. Relying on the very same decision, learned counsel for  the  petitioner  submitted  that  the    Hon’ble Supreme Court has stated that the extension of time could be granted by way of exception and for reasons to be recorded in writing. The defendants could be permitted to seek extension of time and in the instant case, the trial court ought to have condoned the delay in filing the  written statement and taken the same on record.
  7. In response to this submission, learned counsel for respondent Nos.1 and 2 contended that in paragraph 44 of the judgment of the Hon’ble Supreme Court, it has been categorically stated that the laxity or gross negligence on the part of the defendant or his counsel cannot be condoned and if at all, this court is inclined to allow the writ petition, then compensatory costs would have to be granted to the respondent No.1
  8. The object and purpose of amendment of the Civil Procedure Code, 1908, and particularly, Order VIII Rule 1 is well known. The time schedule prescribed under Order VIII Rule 1 has to be honoured, but there is always an exception to the Rule. In the instant case, it is   noted that the petitioner has merely stated that ajesh kumar shankar gave instruction to his counsel to file the written statement and was under the impression that the written statement was filed. Thereafter, after changing his counsel it  was  revealed that no written statement was filed on his behalf. Petitioner’s counsel contends that here has been bonafide and unintentional reason for delay in filing the written statement. But in my view there has been laxity on the part of the petitioner herein in filing a belated written statement. But at the same time ends of justice  would have to be met.
  9. Having regard to the judgment of the apex court, it is noted that even when there is a laxity or gross negligence on the part of the defendant or his counsel in filing the written statement in time, such a written statement could be taken on record by condoning the delay on the imposition of costs. According to the Hon’ble Supreme Court, costs are to be imposed for a dual purpose, firstly, to deter the defendant from seeking    any extension of time just for asking and secondly, to compensate the plaintiff for the delay and inconvenience caused to him.
  10. In the circumstances, by following the dictum of the Hon’ble Supreme Court, the impugned order is quashed. The trial court is directed take on record the written statement filed by the petitioner herein as defendant No.1, subject to payment of costs of 50,000/- to be payable by the petitioner to the respondent No.1 on or before the next date of hearing before the trial court. It is made clear that the written statement shall be taken on record, if said costs are  paid to the respondent No.1 herein.
  11. The writ petition is disposed in the aforesaid terms.

Sd/-

JUDGE

Msu

CT-BSU

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