- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12th DAY OF SEPTEMBER 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.1976 OF 2021 (GM-CPC) BETWEEN: SRI. B. BASAVARAJA S/O LATE BASAVAIAH, AGED ABOUT 64 YEARS, R/O NO.24/1, 2ND CROSS, BALAPPA LAYOUT, KORAMANAGALA, BENGALURU – 560 034 ... PETITIONER (BY SRI. ADINARAYANAPPA, ADVOCATE) AND: 1. SRI. BALAJI, S/O VENKATASWAMY, SINCE DEAD BY HIS LR’S 1(a). SMT. PAPAMMA, W/O LATE MUNISWAMY, AGED ABOUT 63 YEARS, R/AT NO.1129, 5TH CROSS, 7TH MAIN ROAD, RAJENDRA NAGAR, KORAMANGALA VI BLOCK, BENGALURU – 560 095. 1(b). SMT. PRABHAVATHI, W/O S.K. OBLLY, AGED ABOUT 63 YEARS, NO.633, 6TH CROSS, 7TH MAIN, - 2 - NEAR SUBRAMANYA TEMPLE, RAJENDRA NAGAR, KORAMANGALA VI BLOCK, BANGALORE – 560 095. 1(c). SRI ANIL KUMAR, S/O LATE. MUNISWAMY, AGED ABOUT 38 YEARS, R/AT NO.1129, 5TH CROSS, 7TH MAIN ROAD, RAJENDRA NAGAR, KORAMANGALA VI BLOCK, BENGALURU – 560 095. 1(d). SMT. GIRIJA, W/O MUNIRAJU, AGED ABOUT 39 YEARS, R/AT NO.1/49-30, KUNDAMARANAPALLI, KRISHNAGIRI DISTRICT, TAMIL NADU – 635 113. 1(e). SRI. SUBRAMANI, S/O LATE MUNISWAMY, AGED ABOUT 30 YEARS, R/AT NO.1132, 5TH CROSS, 7TH MAIN ROAD, RAJENDRA NAGAR, KORAMANGALA VI BLOCK, BENGALURU – 560 095. 1(f). SMT. L. LAKSHMAMMA W/O LATE. RANGASWAMY, D/O LATE VENKATASWAMY, AGED ABOUT 70 YEARS, R/AT NO.19, 7TH CROSS, BTM 1ST STAGE, NARASIMHAIAH GARDEN, TAVAREKERE, DHARMARAM COLLEGE POST, BANGALORE – 560 029. 1(g). SMT. ANJANAMMA, W/O LATE. VENKATASWAMY, AGED ABOUT 66 YEARS, - 3 - R/AT NO.129, MLB SLUM, NEAR KRISHNA SWAMY TEMPLE, AADUGODI, BANGALORE – 560 030. 1(h). SRI. VIJAY KUMAR V., S/O LATE VENKATASWAMY, AGED ABOUT 64 YEARS, R/AT 127, 4TH MAIN, NANJAPPA LAYOUT, AADUGODI, BANGALORE – 560 030. 1(i). SRI. V. PRAKASH, S/O LATE. VENKATASWAMY, AGED ABOUT 62 YEARS, R/AT 127, 4TH MAIN, NANJAPPA LAYOUT, AADUGODI, BANGALORE – 560 030. 1(j). SRI. V. SATISH, S/O LATE VENKATASWAMY, AGED ABOUT 53 YEARS, R/AT 127, 4TH MAIN, NANJAPPA LAYOUT, AADUGODI, BANGALORE – 560 030. 1(k). SMT. UMA D/O LATE VENKATASWAMY, W/O SRI NANDAKUMAR, AGED ABOUT 52 YEARS, R/AT NO.8/1, 3RD CROSS, CHOCOLATE FACTORY ROAD, JAYANAGAR, BANGALORE SOUTH, BANGALORE – 560 041. 1(l). SMT. PADMA, D/O LATE VENKATASWAMY, W/O SRI JANARDHAN, AGED ABOUT 48 YEARS, R/AT NO.32, 2ND MAIN, NANJAPPA LAYOUT, - 4 - AADUGODI, BANGALORE – 560 030. 1(m). MS. ANURADHA, D/O LATE. VENKATASWAMY, AGED ABOUT 46 YEARS, R/AT NO.127, 4TH MAIN, NANJAPPA LAYOUT, AADUGODI, BANGLAORE – 560 030. 2. SMT. MAHABOOB JAN, SINCE DEAD BY HER LR’S 2(a). SMT. K. SAJEEDA BEGUM @ K. SHAMEEN BANU, D/O LATE SYED KAREEM AND LATE. MEHABOOB JAAN, W/O SRI. Y. JABBAR BASHA, AGED ABOUT MAJOR, NO. 30, BEGUM SAHIB, 3RD LINE, MISHAPET, ROYONPETTAI, CHENNAI, TAMIL NADU – 600 014. ... RESPONDENTS (BY SRI. S. VENKATESHWARA BABU, ADVOCATE FOR SRI. A. SHIVARAMA, ADVOCATE FOR R1 (A-F & G); R2(A) – SERVED AND UNREPRESENTED; SRI. A.B. DIVYATHEJ, ADVOCATE FOR R1 (H, I, J, K & M)) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTIN OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS FROM THE LEARNED XI ADDL. CITY CIVIL JUDGE AT BANGALORE IN O.S.NO.7110/2006 AND AFTER PERUSING THE RECORDS, SET ASIDE THE ORDERS DATED 09.09.2020 PASSED ON I.A. NO.11 FILED UNDER SECTION 151 OF CPC SEEKING PERMISSION TO FILE HIS WRITTEN STATEMENT AND ALSO ORDER PASSED ON I.A. NO.12 FILED UNDER ORDER 9 RULE 7 R/W SECTION 151 OF CPC TO SET ASIDE THE EX-PARTE ORDER WHICH IS PRODUCED AT ANNEXURE-‘A’ AND ETC., - 5 - THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.08.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER This writ petition is filed to set aside the orders dated 09.09.2020 on the file of learned XI Addl. City Civil Judge at Bangalore in O.S.No.7110/2006 on I.A.No.11 filed under Section 151 of CPC seeking to file the written statement and also order passed on I.A.No.12 filed under Order 9 Rule 7 read with Section 151 of CPC and consequently allow I.A.Nos.11 and 12 in O.S.No. 7110/2006. 2. The Petitioner herein is the Defendant No.2 before the trial Court. Respondent No.2 was also a defendant before the trial Court and the Respondents 1 (a) to (m) are the Plaintiffs 1 (a) to (m) before the trial Court. 3. The Respondent No.1 has filed a suit against the petitioner and the Respondent No.2 in O.S.No.7110/2006 before the trial - 6 - Court for specific performance of contract of sale agreement dated 09.01.2006. 4. On filing of suit, summons were served on the petitioner and the petitioner had enquired with the Respondent No.2, one Smt.Mehaboob Jan, when she in turn said that she has not executed the sale agreement in favour of Balaji, Respondent No.1 or any one else and assured the petitioner that she is always ready to execute the Sale Deed to petitioner on receiving the balance sale consideration. On the date of Agreement, a sale consideration of Rs.52,20,000/- was fixed and on the same day, Rs.5000/- was paid by cash and sum of Rs.2,15,000/- by way of cheque bearing No.607056 dated 01.05.2006 drawn on Canara Bank; Remaining sale consideration of Rs.50,00,000/- was to be paid within four months. 5. During the pendency of the suit, Balaji died in the month of February or March, 2018. As matter stood thus, an I.A. No.8 under Order 23 Rule 3 of CPC was filed to bring the legal representatives. The same was allowed and the plaintiffs were permitted to file an amended plaint. - 7 - 6. In the meanwhile, even Mehaboob Jan died and her daughter came on record and filed a written statement wherein it was averred that Mehaboob did not execute any agreement in favour of Balaji. 7. Mehaboob Jan after executing the sale agreement, received Rs.10,000/- vide cheque bearing No.000810 dated 07.02.2007 drawn on canara bank. A sum of Rs. 5,00,000/- by way of cash dated 07.03.2007 and sum of Rs. 4,00,000/- by way of cash dated 26.03.2007 were also received by Mehaboob Jan. Final payment of Rs.13,45,000/- was received by Mehaboob on 01.05.2006 and when the petitioner demanded the execution. Then the suit came to be filed and the defendant was placed ex- parte, thereby constraining the defendant No.2, (petitioner herein) to file I.A. No. 11 to permit to file the written statement and I.A. No. 12 to set aside the ex-parte order. However, the said IAs were dismissed. Aggrieved by the same, the current writ petition has been filed. - 8 - 8. It was contended by the learned counsel for the petitioner that the Court below has failed to consider the fact that he is a heart patient and due to his ill-health, he could not appear before the court and it was further contended that the Court below has failed to appreciate the law position on this point. 9. It was further contended that the Court below has allowed the application filed under Order 23 Rule 3 of CPC filed by the plaintiffs without considering the objections by the defendant and thereby causing gross injustice to the petitioner. 10. Heard the learned counsel for the parties and perused the records. 11. It is observed that the summons and notice on I.A.No.1 was served on 18.11.2006. Thereafter, the defendant No.2/petitioner was appeared on 10.11.2006 before the trial Court and sought time to file vakalath and written statement. Therefore, the matter was adjourned for the vakalath and statement of defendant by 05.01.2007. On 05.01.2007, though the defendant - 9 - No.1 has filed his written statement, but defendant No.2 has not filed his written statement. It appears that after 12 years 07 months, the defendant No.2 came up with the above said I.A.Nos.11 and 12. 12. Further, it is observed that as per the provision contemplated under Order 8 Rule 1(A) of CPC, the defendant has to show extraordinary and exceptional circumstances in not filing the written statement within the statutory period. For a long period of 12 and half years unless this inordinate delay and inaction is properly explained by the defendant No. 2, he cannot be allowed to file written statement. Though plaintiff has not specifically submitted his objections to applications filed by the defendant No. 2, but legal representative of the defendant No. 1 who is the owner of the suit schedule property seriously objected the applications filed by the defendant No.2. It is true that Order 8 Rule 1(A) of CPC is directory in nature and written statement can be permitted to be filed after statutory period only if defendant No. 2 makes out exceptional case. In the present case, only the contention raised by the defendant No. 2 is that the - 10 - defendant No. 1 had assured to execute sale deed in his favour so that he has not appeared and defendant No.2 also contends that he is suffering heart related problems, but there is no material on record to show that on any point of time, 1 defendant has promised the defendant No. 2 to execute sale deed in his favour and no document is produced on record to show that defendant No. 2 is suffering from heart related problem. No convincing reason has been assigned by the defendant no 2 to the effect that his health problem crippled him from making appearance before the court from 12½ years in order to defend the suit. The defendant no 2 is required to file written statement within a prescribed time, but he has failed and neglected to do so. Defendant No. 2 is very well aware of the stage of the case. When the matter is posted for plaintiff arguments, the defendant has come up with this application at the fag end of the suit. Inordinate delay in filing written statement and previous no appearance has not been properly explained by the defendant No.2. No exceptional circumstances is explained by the defendant which prevented the defendant no. 2 - 11 - from filing written statement with in prescribed period and to make appearance before the court in order to defend the suit. Defendant No.2 failed to make out sufficient grounds to show that due to exceptional circumstances he could not contest the matter by filing written statement. Therefore, defendant No. 2 is not entitled for the relief as sought in these applications. 13. At this juncture, it is relevant to reproduce Order 8 Rule 1 of CPC as follows:- “1. Written statement: The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be the recorded in writing, but which shall not be later than ninety days from the date of service of summons". 14. This is clear from Order 8 Rule 1 of CPC that ordinarily the defendant is required to file the written statement of his defence within a period of 30 days. However, the proviso to the said rule permits the court for reasons to be recorded in writing to allow filing of the written statement within a - 12 - maximum period of 90 days. But in extraordinary and exceptional circumstances, written statement can be filed even beyond this maximum period of 90 days. No sufficient reason has been assigned by the defendant no 2 for his previous non appearance from 12½ years. At this juncture, I would like to rely upon the decision reported in (2018) 6 SCC 639, Atcom Technologies Limited V/s. Y. A. Chunawala and Company. "Hon'ble Supreme Court has reiterated the legal principle laid down in the Saleem Advocate Bar Association that the maximum time period of 90 days for the purpose of filing of the written statement can be extended in exceptional cases. It was held that in such a situation, onus upon the, defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within 30 days." 15. Therefore, even after 90 days, leave can be granted to file written statement. However, this can be done only in exceptional situations and burden to explain the reasons for delay in a satisfactory manner lies upon the defendant who sought for condonation of delay in filing written statement. But such a prayer for extension of time sought by defendant can not be - 13 - granted as a matter of routine. Therefore, extension of time maybe allowed if circumstances which are exceptional occasioned by the reasons beyond the control of the defendant. 16. As per the settled law, it appears that Order VIII Rule 1 of CPC, provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond time as provided for and also to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to plaintiffs and petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court. The provisions of Order VIII Rule 1 CPC or any procedural enactment should not be construed in any manner, which would leave the Court helpless to meet extraordinary situations in the ends of justice. 17. This provision has came up for interpretation in a number of cases and the same was observed by the Apex Court time and again that no doubt, the words “shall not be later than 90 days” - 14 - do not take away the power of the Court to accept written statement beyond the time and it is also held that the nature of the provision is procedural and it is not a part of substantial law and further expressed that there is no restriction in Order VIII Rule 1 of CPC that after expiry of the 90 days, further time cannot be granted. The Court has wide power to make such order in relation to the suit. The provision of Order VIII Rule 1 of CPC providing for upper limit of 90 days to file written statement is directory not mandatory. 18. In view of the above reasons, this Court has opined that in the present case, Thereafter, the defendant No.2/ petitioner was appeared on 10.11.2006 before the trial Court and sought time to file vakalath and written statement. Therefore, the matter was adjourned for the vakalath and statement of defendant by 05.01.2007. On 05.01.2007, though the defendant No.1 has filed his written statement, but defendant No.2 has not filed his written statement. Further, filing I.A.No.11 and 12 to set aside the ex parte Order dated 10.11.2006 and permitting defendant No.2 to come on record and to file his written statement, it - 15 - appears that the petitioner/defendant No.2 is adopting dilatory tactics and causing serious inconvenience to the Court. 19. Further, it is observed that there is an inordinate delay in filing the written statement and also the explanation given for the previous appearances are not properly explained by the petitioner. In view of the same, the petitioner is not entitled to any relief as sought in this writ petition. 20. In view of the same, the trial Court has passed a well- reasoned Order and there are no merits to interfere in this writ petition. The Order dated 09.09.2020 on the file of learned XI Addl. City Civil Judge at Bangalore in O.S.No.7110/2006 on I.A.No.11 filed under Section 151 of CPC seeking to file the written statement and also order passed on I.A.No.12 filed under Order 9 Rule 7 read with Section 151 of CPC are confirmed. Accordingly, the writ petition is dismissed. Sd/- (DR. K.MANMADHA RAO) JUDGE BNV,CT: UR