1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.12048 OF 2021 (GM-CPC) BETWEEN: 1. SHANTARAMA HEDGEKATTE AGE 56 YEARS R/O.E-7, 3RD FLOOR, OAKYARD APARTMENT, 38TH CROSS, “E” & “C” MAIN ROAD TILAKNAGAR, JAYANAGAR BENGALURU-560 041. 2. BALACHANDRA MAHADEVA HEGDE S/O MAHADEVA HEGDE AGED ABOUT 42 YEARS, RESIDING AT GADIKAI POST TARGOD, (BAIRUMBE) TALUK SIRSI 581 402. 3. PRAKASH KAKAL, S/O KAKAL LAKSHMINARAYANA, AGED ABOUT 46 YEARS, RESIDING AT HEGGODU , POST HONNESARA, TALUK SAGARA – 577 417 4. R. GANAPATHI BHAT, S/O RAMAKRISHNA BHAT, AGED ABOUT 65 YEARS, RESIDING AT JIGALAMANE POST YADAJIGALEMANE, TALUK SAGARA – 577 401 SHIVAMOGGA DISTRICT. 5. R. SANATHANA SAMARTHA BHAT, S/O R.GANAPATHI BHAT, AGED ABOUT 32 YEARS, RESIDING AT JIGALAMANE, POST YADAJIGALEMANE, ® 2 TALUK SAGARA – 577 401 SHIVAMOGGA DISTRICT. ...PETITIONERS (BY SRI. NEGLUR ARAVIND, ADVOCATE) AND: 1. SRI. SRINIVAS, S/O SHANKARA NARAYANA HEGDE, MAJOR, R/O 1248, “SRIDURGA NILAYA”, 1ST F MAIN, 8TH CROSS, GIRINAGARA, 2ND BLOCK, BANASHANKARI 3RD STAGE, BENGALURU – 560 085. 2. SMT. ANURADHA PARWATHI, W/O RAGHAVENDRA NARAYANA, AGED 44 YEARS, R/O 3, “OM”, 4TH CROSS, 11TH MAIN, AKSHAYANAGARA WEST, BEGUR POST, BEGUR HOBLI, BENGALURU – 560 068 3. SRI. SUBHASH HEGDE, S/O RAMACHANDRA HEGDE, AGE 37 YEARS, R/O 138, 7TH MAIN, PRAMOD LAYOUT, PANTARA PALYA, NAYANDAHALLI POST, BENGALURU – 560 039. …RESPONDENTS (BY SRI. GOVINDARAJ K., ADVOCATE FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, 1908, PRAYING TO EXAMINE THE LEGALITY AND CORRECTNESS OF ORDER DATED 17.01.2020 PASSED BY THE XXVII ADDITIONAL CITY CIVIL JUDGE (CCH-9) AT BENGALURU IN O.S.NO.6032/2017 ON AN APPLICATION, I.A.NO.2, FILED BY THESE PETITIONERS UNDER OR.8 RULE 1 AND 10 READ WITH SECTION 151 OF CPC, WHICH IS AT ANNEXURE-E TO THE WRIT PETITION AND ETC., 3 THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 31.07.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, DR. K.MANMADHA RAO, J., PRONOUNCED THE FOLLOWING: CAV ORDER (PER: HON'BLE DR. JUSTICE K.MANMADHA RAO) 1. The present Writ petition has been filed challenging the legality and correctness of order dated 17.01.2022 passed by the XXVII Additional City Civil Judge (CCH 9) at Bengaluru in O.S.No.6032/2017 on an application, I.A.No.2 filed by the petitioners and to set aside the same and consequently allow the same. 2. The petitioners 1 to 5 herein are the defendants 1 to 5 and Respondents 1 to 3 are the Plaintiffs 1 to 3 before the Trial Court. 3. The Brief facts of the case are as follows; Plaintiff Nos.1 to 3 filed the suit in O.S.No.6032/17 for perpetual injunction retraining the defendants from publishing any message or statement or article either in print or on television or on Social Media viz, facebook, whatsapp, Twitter, Instagram, e-paper, etc against Ramachandrapura Mutt or his holiness Shri Raghaveshwara Bharati Swamiji in future. 4 4. Defendant Nos.1 to 5 filed a common written statements and application being I.A.No.2 under Order 8 Rule 1 and 10 read with Section 151 CPC seeking leave of the court to file the written Statement belatedly (Annexure-B). Plaintiffs filed their statement of objections. The Trail Court passed an order rejecting the request. 5. Aggrieved by the same, defendants filed the current writ petition. 6. Heard Both the Sides. 7. The Learned counsel for the petitioner would contend that the defendants appeared on 07.10.2017 without receiving summons and copy of the plaint and prepared their written statement on 16.01.2018 after 101 days and thereby there is delay of only 11 days. 8. It was also contended that, the learned trial court failed to observe that though there is delay, court is empowered to permit defendants to file their written statement. It was further contended that the trial court failed to observe that the delay is not attributable to the petitioners herein but due to the fact that 5 petitioners appeared without receiving summons and copies of the plaint. 9. The petitioners further contended that the trial court failed to notice the language employed in Order VIII of CPC and therefore, the order is contrary to law and facts and therefore, liable to be set aside. 10. Learned counsel placed reliance on the Judgment of Apex Court in Kailash vs Nankhu reported in (2005) 4 SCC 480 wherein it was observed as follows: “46. (iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away.” 11. The relevant findings recorded in the order passed in I.A. by the Trial Court are as follows: 6 “ The suit is filed on 01.09.2017….. ….The Counsels for Plaintiff and defendants 1 to 5 appeared on 07.10.2017. Till 07.11.2017, both the advocate for defendant 1 to 5 and defendant 7 did not file the written statement. Later, On 16.01.2018 defendant no- 1 to 5 filed application under Order 8 Rule 1 of CPC to permit him to file the written statement. The counsel for defendant no.7 also filed application under the same provision on 14.08.2019 i.e., After the case was posted for hearing on I.A. No.1. It is important to note here that in the affidavit annexed to the application filed by the advocate for defendant no.1 to 5, the affidavit is sworn by one Prakash Kakkal who is the defendant no.3. In the affidavit, in para no.1, he has stated that he is deposing the affidavit on behalf of defendant no.1 and 2. However, as far as defendant no.4 and 5, he has not sworn affidavit. However, in the written statement filed by them it is very clear that only defendants 1 to 3 have signed and defendant no. 4 & 5 have not put their signatures in the written statement filed by them on 16.01.2018. It is important to note here that even the counsel for the plaintiff has contended that defendants no 4 & 5 have not put their signatures in the written statement and also in the affidavit sworn by the defendant no.3, he has not stated that he is swearing the affidavit. Therefore, how far it is correct to accept the written statement of all the defendant no. 1 to 5 without putting the signatures to the written statement and also without any authority given by them to the defendant no.3 is the question. Further on perusal of the affidavit sworn by the defendant no.3, he stated that both the defendant no.1 and 2 are residing in 7 different parts of Bengaluru and they could not meet each other in order to discuss the merits and demerits……. 12. Further, the contention of the defendant no. 1 to 5 that they have not received the suit summons in order to file the written statement is also not proper because the same contention has been taken by them on 07.10.2017 wherein this court has clearly held that though they have not received the summons from the court they have voluntarily appeared before the court through their counsel. Therefore, it is presumed that the summons have been duly served to them. When defendant Nos.1 to 5 have voluntarily appeared before the court, the question of sending or issuing the summons to them does not arise at all. In the above instances, the statutory period of filing of written statement is already lapsed and further, the Trial Court relied on the Judgment of Hon’ble Apex Court in M/s SCG Contracts India Pvt. Ltd. Vs K S Chamankar Infrastructure Pvt. Ltd. and Ors., (Civil Appeal No.1638/2019) held that the defendant has to file the written statement within 120 days from the date of service of Summons. However, the maximum time for filing of 8 written statement shall not exceed 120 days from the date of service of summons. It is crystal clear that in both the instances, both defendants No.1 to 5 and defendant No.7 did not file the written statement within 120 days from the date of service of the summons. Therefore, the Trial Judge was of the opinion that the court had no power to allow the applications of defendants No.1 to 5 and defendant No.7 and the application was rejected. 13. Further, it is observed that the Trial Court failed to appreciate the provisions of Order VIII Rule 1 of CPC properly, i.e., the defendant shall within 30 days from the date of service of summons on him to file written statement as his defence. Provided that where the defendant fails to file the written statement within the said period of 30 days, he shall be allowed to file the same on such other days as may be specified by the Court for the reason to be recorded in writing, but which shall not be later than 30 days from the date of service of the summons. In the present case, the defendants No.1 to 5 have not received the suit summons in order to file the written statement. Further, there, the defendants themselves appeared voluntarily 9 before the Court through their counsel on 07.10.2017 in view of the same, the question of sending or issuing or receiving summons does not arise. However, after adjourning the matter on 07.10.2017, the respondents No.1 to 5 filed their written statement on 16.01.2018, as such, it appears that there is a delay of 99 days in filing the written statement on considering the date of appearance of the defendants No.1 to 7, i.e., on 07.10.2017 as receipt of the summons. As per the provisions of Order VIII Rule 1 of CPC, the defendant shall file his written statement within 30 days from the date of the service of the summons. In the present case, the defendants have not received summons and appeared before the Court on 07.10.2017, they have to file written statement within a period of 30 days as stipulated under the provisions of CPC, i.e., on 06.11.2017, but filed the written statement on 16.01.2018. It appears that there is a delay of 99 days in filing the written statement. 10 14. In view of the above circumstances, it is relevant to rely upon the following Judgments of Hon’ble Apex Court: • Rani Kusum v. Kanchan Devi, (2005) 6 SCC 705 : 2005 SCC OnLine SC 1195 at page 708 • Zolba v. Keshao, (2008) 11 SCC 769 : 2008 SCC OnLine SC 601 at page 773 • Atcom Technologies Ltd. v. Y.A. Chunawala & Co., (2018) 6 SCC 639 : (2018) 3 SCC (Civ) 777 : 2018 SCC OnLine SC 499 at page 646 • Sailendra Kumar Sisodia vs Rani Sisodiya & Ors 2024 SCC Online SC 4043 15. In view of the above Judgments, 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 faced with frequent prayers for adjournment. The provisions of Order VIII Rule 1 CPC or any procedural enactment should not be construed in any manner, which 11 would leave the Court helpless to meet extra-ordinary situations in the ends of justice. 16. 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” 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. 17. In view of the above reasons, this Court has opined that in the present case, the respondents have not received summons and voluntarily appeared and filed vakalath and written statement after 90 days, i.e., on 99th day after filing vakalath not on receiving the summons. It 12 appears that the defendants are not adopted any dilatory tactics and not caused any serious inconvenience to the Court. 18. In view of the above, the impugned order dated 17.01.2022 passed by the XXVII Additional City Civil Judge (CCH 9) at Bengaluru in O.S.No.6032/2017 on I.A.No.2 is set aside and further, directed the trial Court to receive the written statement on record. Accordingly, the writ petition is allowed. Sd/- (DR. K.MANMADHA RAO) JUDGE bnv Ct-UR