AI Structured Summary
Not yet generated for this judgment
Judgment
A.N. Venugopala Gowda, J.—Petitioner filed suit against Respondents on 22.4.06 to pass a decree of recovery of Plaint B schedule land from the Plaintiff, plaint C schedule land from the 2nd Defendant and for costs. Respondents who are the Defendants in the suit have filed written statement on 7.8.06. They also filed counter claim on 7.8.06. Reply to the counter claim was not filed. Issues were framed. At that stage, the Petitioner filed I.A.2 under O 8 R 6 (3) CPC seeking permission of the Court to file the written statement to the counter claim. I.A.2 was filed on 24.3.10 to which, the Respondents filed statement of objections on 25.7.10. The Trial Court finding I.A.2 to be devoid of merit, has passed an order, dismissing the same. Aggrieved, the Plaintiff has filed this writ petition.
Sri B.M. Shetty, learned Counsel appearing for the Petitioner contended that, on account of not noticing of the counter claim separately filed, i.e., the counter claim being not part and parcel of the written statement, due to inadvertence, reply to the counter claim could not be filed within 90 days period and soon after noticing the lapse, which was bona fide, I.A.2 was filed along with the counter / reply to the counter claim i.e., on 24.3.10. Learned Counsel submits that, I.A.2 has not been considered in the correct perspective and the impugned order is irrational and illegal.
Sri Venkatesh R. Bhagat, learned advocate appearing for the Respondents, by referring to the statement of objections filed to I.A.2 contended that, the reply to the counter claim ought to have been filed within 90 days'' period and the same having not been filed within the time allowed and there being delay of nearly 4 years, which being an inordinate delay and the same having not been explained satisfactorily, the Trial Court was justified in dismissing I.A.2.
I have perused the writ petition papers.
The suit was filed on 22.4.06. Written statement was filed on 7.8.06. counter claim was filed by the Defendants on 7.8.06. The period applicable for filing of written statement also applies to the filing of counter claim in view of the provision under O 8 R 6-G of Code of Civil Procedure. The Plaintiff ought to have filed reply to the counter claim within 30 days or the extended period. The same was not done. Long after the expiry of the period of 90 days, I.A.2 was filed on 24.3.10.
Rule 1 of Order 8 CPC has been held to be directory. In exceptional cases, the written statement filed belatedly could be accepted by directing payment of compensatory cost.
Considering the fact that, much progress has not been made in the suit after filing of the written statement i.e., the suit having remained at the stage of framing of issues, in my opinion, no irremediable prejudice will be caused to the Defendants by accepting the counter filed along with I.A.2. The Trial Court without considering the cause shown in I.A.2 in the correct perspective, has passed the impugned order mechanically. The impugned order, in the facts and circumstances of the case, is irrational and hence, is liable to be quashed.
In the result, the writ petition stands allowed and the impugned order stands quashed.
The reply to the counter claim, filed along with I.A.2 is directed to be accepted subject to the payment of cost of Rs. 10,000/- by the Plaintiff to the Defendants within a period of 6 weeks from the date a copy of this order is supplied to the parties. The cost shall be paid or deposited in the Trial Court.