SADASHIVA BHANDARY Vs. SRI. B. SHEIK MOHAMMAD

JUDGEMENT

(1.) THIS is the Plaintiff's petition challenging the order dated 10.9.2003 passed by the Prl. Civil Judge (Jr. Dn.), Bantwal (DK) on a memo filed by the Petitioner -Plaintiff dated 15.3.2003 in O.S. No. 116 of 2002.

(2.) THE Petitioner herein has filed an Eviction Petition against the Respondent in H.R.C. No. 10 of 1990 under the provisions of Karnataka Rent Control Act, 1961. After coming into force of the Karnataka Rent Act, 1961. After coming into force of the Karnataka Rent Act, 1999 by an order dated 3.6.2002, the HRC Court closed the above case, as the provisions of the new Act were not applicable to the facts and circumstances of the case. Thereafter, on 21.9.2002 the Petitioner filed the present suit for possession. The suit was registered on 30.9.2002 and summons were issued to the Respondent -Defendant which came to be served on him on 28.10.2002. In fact, the Respondent -Defendant entered into appearance through his Counsel on 30.10.2002. Thereafter, case came to be adjourned from time to time to enable the Defendant -Respondent to file his written statement. In spite of lapse of almost five months, as no written statement was filed, the Plaintiff -Petitioner on 15.3.2003 filed a memo before the Trial Court to pronounce the judgment under Order 8, Rule 10 of Code of Civil Procedure Even consideration of this application was delayed and as such the Petitioner had to approach this Court in C.R.P. No. 1818 of 2003, this Court by the order dated 11.7.2003 while disposing of the said revision petition directed the trial Court to immediately take up the memo filed by the Petitioner dated 15.3.2003 for consideration and pass appropriate orders in accordance with the provisions of Code of Civil Procedure specially Order VIII, Rule 1 read with Rule 10. Thereafter, by the impugned order dated 19.9.2003, the trial Court disposed of the memo holding that, as the Defendant has already filed written statement, provisions of Order VIII, Rule 1 cannot be invoked even though there was delay beyond the prescribed period. Aggrieved by the said order, the present revision petition is filed.

(3.) I am afraid, both the grounds are untenable ones. In so far as filing the written statement beyond 30 days (the prescribed period) as per Order VIII, Rule 1 read with Rule 10 of Code of Civil Procedure the very Section prescribed for reasons to be recorded, the trial Court can permit the Defendant to file written statement, but again there is a time limit of 60 days prescribed. Thus, at the most, the written statement can be filed within the total 90 days. In the present case, admittedly the written statement is filed by the Defendant beyond the period of even 90 days. It is to be noted that mere filing of written statement by the Defendant after the expiry of 30 days is not permissible unless the trial Court itself had permitted him to do so that to (sic) too with reasoned order. Admittedly and undisputedly there is no such order passed by the Trial Court and in fact the Plaintiff -Petitioner had to approach this Court in C.R.P. No. 1818 of 2003 and this Court in turn had to direct the trial Court to consider the memo filed by the Plaintiff. As such, even if the written statement is filed by the Defendant that was illegal and impermissible, as the same was not with the permission of the trial Court. Hence, the first ground raised by the learned Counsel for the Defendant -Respondent is not acceptable. So far as the second ground namely maintainability of the revision petition is concerned, as Section 115 proviso provides as is well settled that, when there is clear illegality in procedure committed by the Court, this Court by exercising the inherent power can/should interfere with such orders and set at not (sic) naught the illegality committed. In the present case, as the impugned order is contrary to the provisions of Code of Civil Procedure and against the principles laid down by this Court in Sathyapal's case, in my view there is no merit in respect of the maintainability of the revision petition as raised by the learned Counsel for the Respondent.