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Judgment
A.N. Venugopala Gowda, J.—Chandrappa - Respondent, instituted the suit seeking the relief of partition and separate possession claiming 1/3rd share in the plaint schedule properties and for declaration of will dated 17.6.1991 executed by deceased Thimmakkd wife of Hanumantharayappa, in favour of the 3rd Defendant, is not binding on the share of the Plaintiff and for other consequential reliefs. Suit was instituted on 21.8.03. Suit summons were served on the Petitioners on 19.09.03. The written statement was not filed. An application was filed on 22.7.09 by the Petitioners u/s 151 CPC to permit them to file their defence/written statement. Along with the said application, written statement was also filed. The application was opposed by the Plaintiff on the ground that, there is inordinate and unexplained delay and in between, the suit has made progress, wherein he has deposed as PW-1. Finding merit in the objections, the Trial Court has dismissed the said application which was registered as I.A.9. Aggrieved, the Defendants 2, 4 and 5 have filed this writ petition.
Sri M. Jai Prakash Reddy, learned Counsel appearing for the Petitioners would contend that, the non filing of the written statement was on account of the suit being transferred from Hiriyur to Chitradurga and thereafter, back to Hiriyur and in between, there was change of counsel and that apart, the 1st Petitioner i.e., Defendant No. 2 suffered a paralytic stroke and was unable to move about. Learned Counsel submits that the cause shown for the delay has not been considered in the correct perspective and as a result, the impugned order has been passed by adopting a pedantic approach to the matter.
Sri K.G. Lakshmipathy, learned Counsel appearing for the Respondent No. 1 - Plaintiff, on the other hand, would submit that the claim of the Petitioners has been considered in the correct perspective by the Trial Court. Learned Counsel submits that, if the 2nd Defendant was unwell, the other Defendants could have taken steps to have the written statement filed and since such a course of action was not adopted and there is an inordinate delay in the matter, the Petitioners are not entitled to the relief.
Having heard the learned Counsel on both sides, I have perused the writ petition record.
Undeniably, the suit was instituted in Hiriyur. After some time, the suit was transferred to Chitradurga wherefrom it was re-transferred to Hiriyur. The learned Counsel who was engaged by the Defendants on account of the said transfer and re-transfer of the suit, have not take steps. From the record, it is evident that the 1st Petitioner/2nd Defendant, had suffered a paralytic stroke and he being the eldest member in the family would naturally have taken the steps to file the written statement but for, the state to which he was reduced i.e., being confined to home on account of the paralytic stroke suffered. Though the 2nd and 3rd Petitioners could have taken action, they have not taken the required action and the written statement was hot filed from 2004 till 22.7.09. However, along with I.A.9, written statement has been filed. This Court wile ordering notice, had directed the Petitioners to deposit Rs. 2,000/- which the Petitioners have deposited. Keeping in view the facts and circumstances of the case and that the parties are from a rural area and are agriculturists and not having much literacy, I would deem it appropriate to permit the acceptance of the written statement by subjecting the Petitioners to terms so that the Plaintiff can be compensated for the delay caused in disposal of the suit.
In the result, I pass the following:
ORDER
Writ petition is allowed.
Impugned order stands quashed.
I.A. 9 filed in the Trial Court stands allowed. Written statement filed by the Defendants 2, 4 and 5 be accepted on they depositing a further sum of Rs. 10,000/- in the Trial Court before 8.10.10. If the amount is deposited, the written statement be accepted and matter proceeded from the stage of acceptance of written statement by raising the issues and holding trial in the suit. In case of default, the suit shall proceed from the stage at which it is now pending.
The amount in deposit in this writ petition be released in favour of the 1st Respondent.