OS.No.

5466/2004

ORDERS ON IA.No.38

The 2nd defendant an application under Sec.151 CPC

prays to permit him to file written statement to contest the
case. On set written statement is enclosed to the application.

2. The plaintiff not opposed the application. The 1st

defendant who contested the case filed objections contending
that application filed by the 2nd defendant is not maintainable
either in law or on facts. This application is filed in collusion
with plaintiff. The 2nd defendant was present on 14.7.2015
and filed an application under order 9 rule 7 through his
counsel to file the written statement and the same was
allowed by this court on 21.8.2015 on cost. The 2nd defendant
failed to comply the order of this court and came with a false
story in collusion with the plaintiff to mislead this court, and
on the same ground the present application is not tenable.
Once the plaintiff succeed her case all will get share in the
suit schedule property. the 2nd defendant has no locus standi
to file this application. The application is vexatious, devoid of
merit and not entertainable in law.

3. Heard the arguments of 2nd defendant in person

and Sri.S.G.R., advocate appearing for 1st defendant. The
counsel appearing for plaintiff have not submitted arguments.
 4. Perused the case file, IA.38 and the objections
filed by 1st defendant. The suit is filed in the year 2004. 12
years elapsed. The present application is filed when the case
is posted for arguments of defendants. The order sheet dtd.
14.7.2015 disclose that the 2nd defendant appeared before the
court through his advocate H.M.H., and filed IA.28 under
order 9 rule 7 CPC to set aside exparte order passed against
him and IA.29 u/s. 151 CPC with written statement of 2nd
defendant. The plaintiff filed objections to both the
applications contending that the 2nd defendant deliberately
remained absent and came with this application when the
case stands posted for her’s further evidence. The order sheet
dtd. 21.8.2015 indicate that IA.28 & 29 were allowed on
payment of cost of Rs.2000/- each, the exparte order passed
against 2nd defendant dtd.11.4.2014 is set aside and 2nd
defendant was permitted to file written statement subject to
payment of cost of Rs.4000/-.

5. The order sheet dtd. 25.8.2015 disclose that 2nd

defendant remained absent, cost not paid and written
statement not taken to file. It is seen from the order sheet
dtd.5.1.2016 the 2nd defendant appeared before the court and
filed application ie., IA.36 contending that he never engaged
Harish Advocate and sought permission to engage new
counsel by terminating Sri.Harish Advocate. This court vide
orders dtd. 6.2.2016 rejected the prayer of the 2nd defendant
as sought in IA.36 on the ground that no action has been
taken against Harish Advocate for having represented him
without his consent and copy of the application not served
upon the said Advocate. The order sheet dtd.10.2.2016
disclose that the 2nd defendant came with an application –
IA.37 seeking permission to engage advocate of his choice.
The 1st defendant opposed the application. The plaintiff has
not opposed the said application. IA.37 was allowed on
12.2.2016 permitting the 2nd defendant to engage an advocate
of his choice and the advocate who is on record entitled to
legal fee if not received. The 2nd defendant instead of engaging
the advocate and praying to receive the written statement by
paying cost as per the orders passed on IA.28 & 29 by paying
cost of Rs.4000/-, came with this application. When the 2nd
defendant is permitted to file written statement again
permitting him does not arise at all. The 2nd defendant can
seek a prayer to receive the written statement by assigning
the valid reasons for not complying the orders passed on
IA.28 & 29. Therefore the present application is devoid of
merits and the same is liable to be rejected. Hence I proceed
to pass the following:

ORDER

I.A.No.38 filed under section 151 CPC

by the 2nd defendant is hereby rejected.

[K.AMARANARAYANA]
XVIII Addl. City Civil Judge,
Bengaluru