Case Note & Summary
The dispute originated from Regular Civil Suit No.14 of 2016 filed by the respondent against the petitioner for partition and separate possession of suit property. The petitioner, as defendant, sought to file his written statement with an application to condone 58 days delay. The trial court refused condonation, leading to the present writ petition. The petitioner argued that the delay was not inordinate and he was ready to compensate the respondent, while undertaking not to seek adjournments or protract trial. The respondent opposed, contending insufficient cause for delay and noting that evidence was part-heard with cross-examination already conducted. The High Court analyzed the nature of partition suits, emphasizing that defendants must have opportunity to plead their case regarding property nature. The court considered the parties' advanced ages (nearing 80s), the practical difficulties in executing partition decree without defendant's pleadings, and the suit's pendency since 2016. While acknowledging that condonation discretion must be exercised cautiously per precedent, the court found this case exceptional due to its peculiar facts. The court allowed the writ petition, quashing the trial court's order and permitting the written statement on record, but imposed costs of Rs.15,000 on the petitioner and directed time-bound trial completion within 10 months.
Headnote
A) Civil Procedure - Condonation of Delay - Written Statement - Order VIII Rule 1, Code of Civil Procedure, 1908 - The petitioner sought condonation of 58 days delay in filing written statement in a partition suit, which was refused by the trial court - The High Court held that discretion to condone delay must be exercised cautiously and only in exceptional circumstances, but in this case, considering the nature of the partition suit, ages of parties nearing 80s, and practical difficulties in executing decree without defendant's pleadings, the delay should be condoned - Held that the trial court's order refusing condonation was set aside and written statement allowed on record with costs (Paras 13-23). B) Civil Procedure - Writ Jurisdiction - Delay in Approaching Court - The petitioner filed writ petition 8 years after the impugned order - The High Court noted this delay but entertained the petition considering the pending nature of the suit since 2016, the age of parties, and the need to bring the controversy to logical end - Held that writ petition was maintainable despite delay (Paras 13, 22). C) Property Law - Partition Suit - Defendant's Right to Plead - In a partition suit between two step-brothers, the defendant has a right to demonstrate that property is not joint family property, partition has already occurred, or property is self-acquired - The High Court emphasized that in partition suits, every party is in the position of a plaintiff and defendant's stake should not be decided merely on plaintiff's pleadings - Held that denying defendant opportunity to file written statement would lead to prolonged litigation and difficulties in execution (Paras 14-16).
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Issue of Consideration: Whether the trial court erred in refusing to condone the delay of 58 days in filing the written statement in a partition suit, and whether the High Court should exercise its discretion to allow the written statement on record.
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Final Decision
Writ Petition allowed. Impugned order dated 15.11.2016 quashed and set aside. Application at Exhibit-12 allowed. Petitioner to pay costs of Rs.15,000 to respondent. Trial to be concluded within 10 months.
