The Bruhat Bangalore Mahanagara Palike Municipal Offices vs Canopy Restaurant

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 17.06.2013 passed on the interlocutory application filed under Section 151 of CPC. The Court below by the said order has dismissed the application and has rejected the request of the defendant to take on record the written statement filed by them belatedly.

The respondent... herein is the plaintiff in O.S. No. 6103/2006 The suit is filed seeking for a judgment and decree of specific performance directing the defendant to execute and register a fresh lease deed for a period of five years in favour of the plaintiff in the terms as indicated therein.

The defendants who have not filed the written statement within the time provided under Order 8 Rule 1 or in the near about period have filed the application under Section 151 of CPC seeking that the delay be condoned and written statement be taken on record. The application was opposed by the plaintiff. The Court below took note of the fact that the defendant had put in appearance on 18.08.2006 and despite the evidence being completed, the written statement was not filed and it was only at the stage of arguments, an application was made. In that view, the trial Court was of the view that the application filed on 28.09.2012 cannot be allowed and the written statement cannot be taken on record.

Learned counsel for the petitioner would seek to explain the circumstance under which the written statement could not be filed within time. The delay on the part of the defendant cannot be seriously disputed since the dates as recorded is evident.

Learned counsel for the respondent-plaintiff would seek to sustain the order passed by the Court below and would further contend that the time frame as fixed under the code is to be adhered to. Reliance is placed on the judgment of the Hon''ble Supreme Court in the case of R.N. Jadi and Brothers and Others Vs. Subhashchandra, .

In the light of the above, on the aspect that there is inordinate delay in filing the application seeking that the written statement be taken on record, absolutely there can be no doubt whatsoever. Even in that situation, the question for consideration is as to whether this Court should exercise its discretion to condone the delay and direct the Court below to take the written statement on record. From the decision cited supra, the position of law is enunciated by the Hon''ble Supreme Court that the provision contained in Order 8 Rule 1 is only directory and not mandatory. Even that be so, as to whether there is bona fide in the reasons put forth is also one of the aspects which require consideration.

In that regard, if the reasons indicated in the affidavit is perused, it may not entirely satisfy the requirement. However, what cannot be lost sight in the instant case is that the relief sought in the plaint relates to a property belonging to the petitioner which is a public authority. In such event, whether a huge property belonging to the petitioner has been leased to the plaintiff and in that circumstance, when the plaintiff is seeking a judgment and decree of specific performance, an element of public interest is also involved in the suit as the property which is a public premises cannot be wasted in that manner and there cannot be loss to the exchequer if ultimately only due to the default of the defendant a judgment and decree is granted in favour of the plaintiff. Therefore, the procedure contemplated would have to yield to the public interest involved in the instant case as procedure is hand maid to justice. If the consideration of the present nature is not made, there can also be possibility where the officers of such public bodies can remain hand in glove with the parties to enter into a contract with the public bodies and to aid such parties in obtaining decrees without properly defending the suit.

At the same time, it is also necessary to observe that though leave is granted by this Court to file the written statement, the petitioner shall also take steps to identify the officers concerned who had not taken effective steps in the suit and take appropriate action against them and also to recover the costs that is going to be imposed by this Court in this petition as a pre-condition for filing the written statement.

In that light, even though it is noticed that the defendants had appeared on 18.08.2006 and the written statement had not been filed, considering the relief sought, all issues would have to be decided by the Court below by complete adjudication and as such, notwithstanding the delay, leave is granted to the petitioner herein which is the defendant in the suit to file the written statement, subject to the condition that the petitioner shall pay the costs of Rs. 10,000/- (Rupees ten thousand only) to the plaintiff before the Court below. The Commissioner of the petitioner-Mahanagara Palike is directed to enquire into the matter, fix responsibility on the officer who was responsible for not filing the written statement within time and recover the costs from the said officer after providing him an opportunity.

In that view, the order dated 17.06.2013 is set aside subject to the above terms. Consequently the application filed under Section 151 of CPC is allowed. The Court below is directed to receive the written statement and thereafter proceed with the suit in accordance with law.

In terms of the above, the petition stands disposed of.