Vishweshwara Devaru vs Kishan

Anand Byrareddy, J.—Heard the learned counsel for the petitioners.

Given the circumstances of the case, notice to respondents is dispensed with and the matter is considered for final disposal, in the interest of justice

The petitioners are said to be the defendants before the Trial Court. The plaintiffs had filed a suit for several reliefs including mandatory injunction. There was an application seeking temporary mandatory injunction which had been granted by the Trial Court. The nature of relief sought was to restore a road which was said to have been destroyed by the defendants, to its original condition. The suit having been challenged in appeal, the Appellate Court had stayed the operation of the order and had called for the records. The petitioners who had not filed their written statement before the Trial Court, filed an application seeking condonation of delay to file written statement beyond the time prescribed under the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC", for brevity) and sought permission to file the written statement. The Appellate Court has rejected the same on the ground that there was an earlier application filed by the petitioners before the Trial Court seeking extension of time to file the written statement which was refused and therefore, the Trial Court having refused to extend the time to file the written statement, similar relief could not be granted and has rejected the application.

The learned counsel for the petitioners would point out that the reasoning of the Appellate Court is erroneous. In that, the earlier application was filed before the Trial Court seeking extension of time beyond the period of 90 days as the petitioners were gathering material by recourse to Right to Information Act, 2005 and which was necessary for the pleadings. Since the material had not been obtained, they had sought extension of time. The same having been rejected, could not be considered as an application seeking permission to file the written statement. It is only now that the application was filed seeking condonation of delay and to file the written statement. Accordingly, since the Appellate Court had chose to call for the records of the Trial Court, the Appellate Court, in terms of Section 10 of the CPC was also empowered to perform such duties as cast on the Trial Court and ought to have considered the application in the light of the law laid down by the Hon'ble Supreme Court. In that, the time prescribed under Order 8 Rule 1 of the CPC is not mandatory and it is directory. Given the explanation offered by the petitioners, it was necessary for the Court below to consider the application on such terms as it deems fit. Rejection on erroneous terms would certainly cause miscarriage of justice and seeks this Court to correct the injustice caused.

Given the circumstances of the case, since the Appellate Court had, at that footing, called for the records of the Trial Court, there is infact no proceedings pending before the Trial Court, the application which is not in the nature, the petitioners sought before the Trial Court and which was considered by the Trial Court, since the Appellate Court had taken up the duties to consider the application since the entire record was before it, the Appellate Court having rejected the application on erroneous finding, certainly results in miscarriage of justice. Given the state of law as laid down by the Hon'ble Supreme Court and given the case of delay in the present case on record to file written statement, it was a fit case warranted that the application be allowed on payment of cost. Accordingly, the petitioners shall pay a cost of `1,000/- to the plaintiff. Application filed by them shall be allowed and written statement shall be taken on record and the Appellate Court shall expedite the consideration of the appeal and remit the papers to the Trial Court at the earliest. In that, the matter could be considered on merits at the earliest. With that observation, the petition stands disposed of.