Sri. Sadashiva Bhandary vs Sri. B. Sheik Mohammad

S.R. Bannurmath, J.—This is the Plaintiff''s petition challenging the order dated 10.9.2003 passed by the Prl. Civil Judge (Jr. Dn.), Bantwal (DK) on a memo filed by the Petitioner-Plaintiff dated 15.3.2003 in O.S. No. 116 of 2002.

The Petitioner herein has filed an Eviction Petition against the Respondent in H.R.C. No. 10 of 1990 under the provisions of Karnataka Rent Control Act, 1961. After coming into force of the Karnataka Rent Act, 1961. After coming into force of the Karnataka Rent Act, 1999 by an order dated 3.6.2002, the HRC Court closed the above case, as the provisions of the new Act were not applicable to the facts and circumstances of the case. Thereafter, on 21.9.2002 the Petitioner filed the present suit for possession. The suit was registered on 30.9.2002 and summons were issued to the Respondent-Defendant which came to be served on him on 28.10.2002. In fact, the Respondent-Defendant entered into appearance through his Counsel on 30.10.2002. Thereafter, case came to be adjourned from time to time to enable the Defendant-Respondent to file his written statement. In spite of lapse of almost five months, as no written statement was filed, the Plaintiff-Petitioner on 15.3.2003 filed a memo before the Trial Court to pronounce the judgment under Order 8, Rule 10 of CPC Even consideration of this application was delayed and as such the Petitioner had to approach this Court in C.R.P. No. 1818 of 2003, this Court by the order dated 11.7.2003 while disposing of the said revision petition directed the trial Court to immediately take up the memo filed by the Petitioner dated 15.3.2003 for consideration and pass appropriate orders in accordance with the provisions of CPC specially Order VIII, Rule 1 read with Rule 10. Thereafter, by the impugned order dated 19.9.2003, the trial Court disposed of the memo holding that, as the Defendant has already filed written statement, provisions of Order VIII, Rule 1 cannot be invoked even though there was delay beyond the prescribed period. Aggrieved by the said order, the present revision petition is filed.

The question whether written statement can be filed beyond the prescribed period has been now settled by the Division Bench of this Court in the case of A. Sathyapal and Others Vs. Smt. Yasmin Banu Ansari and Another, . The Division Bench of this Court has held that, the Defendant has to file his written statement within 30 days from the date of service of summons upon him and he can be allowed by the Court to file his written statement beyond the said period of 30 days but within 90 days at maximum and that to by reasoned order by the trial Court. In the present case, there is no dispute that, within the prescribed period of 30 days written statement was not filed by the Respondent. The present written statement alleged to have been filed was on 19.7.2003, which the trial Court finds it permissible. The learned Counsel for the Defendant vehemently contended that, as the written statement has been filed and referring to para 13 of the Division Bench decision in Sathyapal''s case supra to contend that, even after the initial period of 30 days, it is open for the Defendant to file written statement and in the present case, as already written statement has been filed, there is no illegality committed by the trial Court. He also contended that, as the revision petition itself is not maintainable because of challenge to an order passed on a memo filed by the Plaintiff, the revision petition is devoid of merits.

I am afraid, both the grounds are untenable ones. In so far as filing the written statement beyond 30 days (the prescribed period) as per Order VIII, Rule 1 read with Rule 10 of CPC the very Section prescribed for reasons to be recorded, the trial Court can permit the Defendant to file written statement, but again there is a time limit of 60 days prescribed. Thus, at the most, the written statement can be filed within the total 90 days. In the present case, admittedly the written statement is filed by the Defendant beyond the period of even 90 days. It is to be noted that mere filing of written statement by the Defendant after the expiry of 30 days is not permissible unless the trial Court itself had permitted him to do so that to (sic) too with reasoned order. Admittedly and undisputedly there is no such order passed by the Trial Court and in fact the Plaintiff-Petitioner had to approach this Court in C.R.P. No. 1818 of 2003 and this Court in turn had to direct the trial Court to consider the memo filed by the Plaintiff. As such, even if the written statement is filed by the Defendant that was illegal and impermissible, as the same was not with the permission of the trial Court. Hence, the first ground raised by the learned Counsel for the Defendant-Respondent is not acceptable. So far as the second ground namely maintainability of the revision petition is concerned, as Section 115 proviso provides as is well settled that, when there is clear illegality in procedure committed by the Court, this Court by exercising the inherent power can/should interfere with such orders and set at not (sic) naught the illegality committed. In the present case, as the impugned order is contrary to the provisions of CPC and against the principles laid down by this Court in Sathyapal''s case, in my view there is no merit in respect of the maintainability of the revision petition as raised by the learned Counsel for the Respondent.

Hence, following the decision of the Division Bench in Sathyaopal''s case, I am left with no choice except to set aside the impugned order dated 10.9.2003 passed by the trial Court. After quashing of the proceedings now, the trial Court has to proceed with the suit in accordance with the provisions of the Order VIII, Rule 10 of CPC to pronounce the judgment.

Petition stands disposed of accordingly. In the fact and circumstances of the case no order for costs.