The court ruled that the limitation for filing a written statement is strict and can only be extended in exceptional circumstances, which were not present in this case.

ORDER :

S. VISHWAJITH SHETTY, J.

1. Plaintiff is before this Court in this writ petition filed under Article 227 of the Constitution of India with a prayer to set aside the order dated 07.03.2022 passed on I.A.No.9 in O.S.No.391/2011 by the Court of IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru.

2. Heard the learned counsel for the parties.

3. Petitioner has filed O.S.No.391/2011 before the Jurisdictional Civil Court seeking the relief of declaration and consequential relief of mandatory injunction and permanent injunction in respect to the suit schedule properties. Defendant No.1 who had entered appearance in the said suit on 08.08.2011 had filed I.A.Nos.2 and 3 under Order VII Rule 11 of CPC and under Section 11 of CPC. Defendant No.2 has been placed ex-parte in the suit. Though defendant No.1 had filed I.A.Nos.2 and 3, he had not filed his written statement opposing the suit claim. After the suit was posted for passing ex-parte judgment, I.A.No.9 was filed on behalf of the defendant under Section 151 of CPC with a prayer to condone the delay in filing the written statement and receive his written statement. The said application was opposed by the plaintiff by filing detailed objection. The Trial Court vide the order impugned has allowed I.A.No.9 and being aggrieved by the same, plaintiff is before this Court.

4. Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that absolutely no reasons is assigned in the affidavit filed in support of the application to condone the delay of more than ten years caused in filing the written statement. Merely for the reason that applications filed by the defendant No.1 were pending, that itself will not save the limitation provided under the statute for filing the written statement. In the absence of any explanation offered by defendant No.1, the Trial Court was not justified in allowing I.A.No.9. Accordingly, he prays to allow the petition.

5. Per contra, learned counsel appearing for the contesting respondent/defendant No.1 has argued in support of the impugned order. He submits that I.A.No.2 and 3 filed on behalf of the defendant No.1 are pending consideration even as on the date. It is under the circumstances, the written statement was not filed. He submits that in W.P.No.24087/2012, which was disposed of on 02.03.2021, this Court has granted liberty to the parties to raise the contentions urged in the said writ petition before the Civil Court. Therefore, liberty was granted to the petitioner by this Court to file written statement in this suit. He refers to the judgment of the Hon'ble Supreme Court in the case of KAILASH VS. NANHKU AND OTHERS - 2005 SCC ONLINE SC 691 and submits that Limitation provided for filing written statement is only directory and not mandatory. If the defendant No.1 is not granted an opportunity to file his written statement, grave injustice would be caused. He has also referred to the judgment of the Hon'ble Supreme Court in the case of C.N.RAMAPPA GOWDA VS. C.C.CHANDREGOWDA AND ANOTHER - (2012) 5 SCC 265 and submits that when there are disputed questions of law, the trial Court should not pass ex-parte judgment and decree. He submits that in the said case the High Court had therefore, set aside the ex-parte judgment and decree and had remitted the matter for fresh trial after giving an opportunity to the defendant to file written statement. He submits that even in this case there are disputed questions of facts and therefore, ex-parte judgment cannot be passed. Accordingly, he prays to allow this petition.

6. Suit in O.S.No.391/2011 is filed on 07.04.20