To what extent, the principle of res-judicata and merger would apply in respect of a decision rendered by this Court while exercising its statutory power of appeal as well as the one rendered while entertaining an appeal invoking Article 136 is not seen considered by the larger bench either in Abbai Maligai or Kunhay Ammed’ case, which is also, in our view, an issue to be considered by the larger Bench. We notice considerable arguments are being raised before this Court as well as before various High Courts in the country on the maintainability of review petitions after the disposal of the special leave petition without granting leave but with or without assigning reasons on which also conflicting views are also being expressed by the two-Judge Benches of this Court. In order to resolve those conflicts and for proper guidance to the High Courts, we feel it would be appropriate that this matter be referred to a larger bench for an authoritative pronouncement.

                                                              NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

               SPECIAL LEAVE PETITION (Civil) No. 490 of 2012


Khoday Distilleries Ltd. & Ors.                          .. Petitioners
                                   Versus
Mahadeshwara S.S.K. LTD.                           .. Respondent


                                  O R D E R


1.     This special leave petition has been filed against the order  of  the
High Court of Karnataka at Bangalore dated 9.9.2011 in RP No.96/2011 in  RFA
No.427 of 2006.  On  20.1.2012  notice  was  issued  on  the  special  leave
petition as well as on the prayer of interim relief. The respondent  entered
appearance and filed a detailed counter affidavit and raised  a  preliminary
objection about the maintainability of the special leave petition.

2.    Shri Rajesh Mahale,  learned  counsel  appearing  for  the  respondent
submitted that the petitioner had earlier challenged the judgment and  order
dated 12.11.2008 in RFA No.427 of 2006 before this Court.  The same came  up
for hearing before this  Court  on  4.12.2009  and  the  respondent  entered
appearance and opposed the petition.  This Court, while condoning the  delay
in filing SLP, dismissed the SLP on the same  day.   Later  the  petitioners
filed Review Petition  NO.96  of  2011  for  reviewing  the  Judgment  dated
12.11.2008 in RFA No.427 of 2006 before  the  High  Court  of  Karnataka  at
Bangalore.  Review petition was dismissed by the High Court by the  impugned
order dated 9.9.2011.  Learned counsel placed considerable reliance  on  the
three Judge Bench Judgment of this Court in Abbai Maligai  Partnership  Firm
and another v. K. Santhakumaran and others (1998) 7 SCC  386  and  contended
that decision would squarely apply to the facts of this case  and  the  High
Court has rightly dismissed the review petition by  holding  that  when  the
Judgment and decree passed by the High Court was confirmed  by  the  Supreme
Court by dismissing the SLP, there  was  no  question  of  entertaining  the
review petition.

3.     Mr.  Gopal  Jain,  learned  counsel  appearing  for  the  petitioners
submitted that the High Court has  committed  an  error  in  dismissing  the
review petition since the  earlier  SLP  was  dismissed  by  this  Court  on
4.12.2009 without stating any reason.    Reliance  was  placed  on  a  three
Judge Bench Judgment of this Court in Kunhay Ammed and others  v.  State  of
Kerala and another (2000) 6 SCC  359.   Learned  counsel  pointed  out  that
since the SLP was dismissed at the admission stage by a  non-speaking  order
it would not constitute res-judicata and does not  culminate  in  merger  of
the impugned judgment and the High Court has  committed  a  grave  error  in
dismissing the review petition.

4.    We notice that large number of review petitions  are  being  filed  by
the parties even after dismissal of the SLPs by this Court, either  by  non-
speaking orders or on merits, and depending upon the out-come of the  review
petitions again SLPs are being filed  before  this  Court  and   both  sides
place reliance on the reasoning of the three Judge Bench Judgment  in  Abbai
Maligai Partnership Firm and another (supra)  or  Kunhay  Ammed  and  others
(supra), in respect of their rival contentions on maintainability.

5.    We notice applying  the  ratio  of  the  Judgments  in  Abbai  Maligai
Partnership Firm and another (supra) or  Kunhay  Ammed  and  others  (supra)
conflicting views are being expressed in few of the subsequent judgments  of
this Court.  In Meghamala and others  v.   G.  Narasimha  Reddy  and  others
(2010) 8 SCC 383, this Court after referring to  Abbai  Maligai  Partnership
Firm and another (supra) and Kunhay Ammed and others (supra)  expressed  the
following view:

       “25. Thus, the law on the issue stands  crystallised  to  the  effect
      that in case a litigant files a  review  petition  before  filing  the
      special leave petition before this Court and it remains  pending  till
      the special leave  petition  stands  dismissed,  the  review  petition
      deserves to be considered. In case it is filed subsequent to dismissal
      of  the  special  leave  petition,  the  process  of   filing   review
      application amounts to abuse of process of the court.


      26. In view of the above, we are of the considered opinion that filing
      of such a review application by the respondents  at  a  belated  stage
      amounts to abuse of process of the court and such  an  application  is
      not maintainable. Thus, the High Court ought not to  have  entertained
      the writ petition  against  the  order  of  dismissal  of  the  review
      application by the Special Court and the order of the  High  Court  to
      that extent is liable to be set aside.”


6.    In Palani Raman Catholic Mission v. S. Bagirathi Ammal (2009)  16  SCC
657 this Court has taken the view that review petition can be  filed  if  no
leave has been granted to file an appeal and until there  is  no  appeal  in
the eye of law in the superior court, review can be preferred  in  the  High
Court under Order 47 Rule 1.  This  Court,  in  that  case,  set  aside  the
judgment of the High Court and directed  the  High  Court  to  consider  the
review petition in accordance with law.

7.    Again in Bhakra  Beas  Management  Board  v.  Krishan  Kumar  Vij  and
another (2010) 8 SCC 701 this Court  held  that  the  mere  dismissal  of  a
special leave petition at a preliminary stage does not constitute a  binding
precedent, and any order passed  by  the  High  Court  placing  reliance  on
earlier order, can still be challenged subsequently.

8.    In K. Rajamouli v. A.V.K.N. Swamyi  (2001)  5  SCC  37  following  the
Judgment in Abbai Maligai Partnership Firm and another  (supra)  and  Kunhay
Ammed and others (supra) this Court further explained the principle of  res-
judicata and held as follows:
      “Following the decision in the case of Kunhayammed we are of the  view
      that the dismissal of the special  leave  petition  against  the  main
      judgment of the High Court would not constitute res  judicata  when  a
      special leave petition is filed against the order passed in the review
      petition provided the review petition was filed  prior  to  filing  of
      special leave petition against the main judgment of  the  High  Court.
      The position would be different where after dismissal of  the  special
      leave petition against the  main  judgment  a  party  files  a  review
      petition after  a  long  delay  on  the  ground  that  the  party  was
      prosecuting remedy by  way  of  special  leave  petition.  In  such  a
      situation the filing of review would be an abuse of the process of the
      law. We are  in  agreement  with  the  view  taken  in  Abbai  Maligai
      Partnership Firm1 that if the High Court allows  the  review  petition
      filed after the special leave petition was dismissed  after  condoning
      the delay, it would be treated as an  affront  to  the  order  of  the
      Supreme Court. But this is not the case here. In the present case, the
      review petition was filed  well  within  time  and  since  the  review
      petition was not being decided by the High Court, the appellant  filed
      the special leave petition against  the  main  judgment  of  the  High
      Court. We,  therefore,  overrule  the  preliminary  objection  of  the
      counsel for the respondent and hold that this appeal  arising  out  of
      special leave petition is maintainable.”




 9.   A different note was struck  by  this  Court  in  Gangadhara  Palo  v.
Revenue Divisional Officer and another (2011) 4 SCC 602 and after  referring
to the Judgment in K. Rajamouli (supra) held as follows:
        “We regret, we cannot agree.  In  our  opinion,  it  will  make  no
      difference whether the review petition was filed  in  the  High  Court
      before the dismissal of  the  special  leave  petition  or  after  the
      dismissal of the special leave petition. The important question really
      is whether the judgment of the High Court has merged into the judgment
      of this Court by the doctrine of merger or not.


         When this Court dismisses a special leave petition by giving  some
      reasons, however meagre (it can be even of just one  sentence),  there
      will be a merger of the judgment of the High Court into the  order  of
      the Supreme Court dismissing the special leave petition. According  to
      the doctrine of merger, the judgment of the lower  court  merges  into
      the judgment of the higher court.  Hence,  if  some  reasons,  however
      meagre, are given by this Court while  dismissing  the  special  leave
      petition, then by the doctrine of merger, the  judgment  of  the  High
      Court merges into the judgment of this Court and after merger there is
      no judgment of the High Court.  Hence,  obviously,  there  can  be  no
      review of a judgment which does not even exist.”



10.   We notice that in K. Rajamouli (supra) this Court has followed  Kunhay
Ammed and others (supra) and distinguished Abbai  Maligai  Partnership  Firm
and another (supra) and in Gangadhara  Palo  (supra)  later  Bench  did  not
accept the view expressed in K. Rajamouli (supra).  To  this  extent,  there
is some conflict between the Judgments in Gangadhara  Palo  (supra)  and  K.
Rajamouli (supra) which calls for resolution by a larger Bench.


11.   We may also point out, in this connection, that  Article  136  of  the
Constitution does not confer any  right  of  appeal  on  any  party  but  it
confers a discretionary power on the Supreme Court to interfere in  suitable
cases.   Clause 1 of Article 136 of the Constitution confers very  wide  and
extensive powers on the  Supreme  Court.   Article  commences  with  a  non-
obstante clause, the words are of over-riding effect  and  clearly  indicate
the intention of the framers of  the  Constitution  that  it  is  a  special
jurisdiction  and  residuary  power  unfettered  by  any  statute  or  other
provisions of Chapter IV of Part V of the  Constitution.   The  jurisdiction
under Article 136 of the  Constitution,  of  course,  cannot  be  barred  by
statute since it is extraordinary power under Article 136.  Article  136  is
an extra-ordinary power which cannot be taken away by legislation.


12.   We also notice that  several  statutes  confer  on  aggrieved  parties
right of appeal to the Supreme Court in contra distinction with  the  powers
conferred on the Supreme Court under Article 136 of  the  Constitution,  for
instance, Section 15Z of the Securities and  Exchange  Board  of  India  Act
(SEBI), 1992 confers a right of  appeal  to  any  person  aggrieved  by  any
decision or order of the Securities Appellate Tribunal.    So  also  various
regulatory legislations provide for statutory  right  of  appeal.   To  what
extent, the principle of res-judicata and merger would apply in  respect  of
a decision rendered by this Court while exercising its  statutory  power  of
appeal as well as the one rendered while  entertaining  an  appeal  invoking
Article 136 is not seen considered by  the  larger  bench  either  in  Abbai
Maligai or Kunhay Ammed’ case, which is also, in our view, an  issue  to  be
considered by the larger Bench.

13.   We notice considerable arguments are being raised  before  this  Court
as well as before various High Courts in the country on the  maintainability
of review petitions  after  the  disposal  of  the  special  leave  petition
without granting leave but with or without assigning reasons on  which  also
conflicting views are also being expressed by the two-Judge Benches of  this
Court.  In order to resolve those conflicts and for proper guidance  to  the
High Courts, we feel it would be appropriate that this  matter  be  referred
to a larger bench for an authoritative pronouncement.

                                       ……………………………J.
                                       (K.S. Radhakrishnan)




                                       ….…………………………J.
                                       (Dipak Misra)
New Delhi,
October 19, 2012.
                       ORDER IN THE PROCEEDING PORTION




      Counsel for the petitioner pressed for an interim stay of the judgment
of the High Court.  Learned counsel for the petitioner submits that  he  has
paid the entire amount and the dispute is only with regard to  the  interest
portion which roughly would come to Rs.1.62 crores.  Considering  the  facts
and circumstances of the case we are inclined to give  a  direction  to  the
petitioner to pay Rs.1 crore to the respondent within a period of six  weeks
from today.  There will be stay of realization of balance  amount  till  the
issue is decided finally.

Merely because Respondent 1 was an Advocate, did not justify the issuance of directions at his request without notice of the other side. Of late, we notice that the High Courts are entertaining writ petitions under Articles 226 and 227 of the Constitution, so also under Section 482 CrPC and passing and interfering with various orders granting or rejecting request for bail, which is the function of ordinary Criminal Court. The jurisdiction vested on the High Court under Articles 226 and 227 of the Constitution as well as Section 482 CrPC are all exceptional in nature and to be used in most exceptional cases. The jurisdiction under Section 439 CrPC is also discretionary and it is required to be exercised with great care and caution. We are of the view that the High Court has committed a grave error in not only entertaining the criminal miscellaneous application in a disposed of writ petition, but also passing an order not to arrest the 1st respondent till the conclusion of the trial. Grant of bail or not to grant, is within the powers of the regular Criminal Court and the High Court, in its inherent jurisdiction, not justified in usurping their powers. Once the criminal writ petition has been disposed of, the High Court becomes functus officio and cannot entertain review petitions or miscellaneous applications except for carrying out typographical or clerical errors. In the instant case, the High Court has entertained a petition in a disposed of criminal writ petition and granted reliefs, which is impermissible in law.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NO. 1693…. OF 2012
                [Arising out of SLP (Crl.) No. 2575 of 2010]


Nazma                                              .. Appellant
                                   Versus
Javed @ Anjum                                            .. Respondent

                               J U D G M E N T
K. S. Radhakrishnan, J.

1. Leave granted.


2.    We are, in this appeal, concerned with the legality and  propriety  of
an order passed by the High Court of Allahabad in  a  disposed  of  Criminal
Miscellaneous Writ Petition.


3.    Facts giving rise to this appeal are as follows:
The marriage of the appellant and 1st respondent  took  place  in  the  year
1997 according to the Muslim rites and  customs  and  out  of  that  wedlock
three children were  born.   According  to  the  appellant,  1st  respondent
married again for a third time.  During the subsistence of  the  appellant’s
marriage, 1st Respondent kept on harassing the  appellant  demanding  dowry,
which resulted in the lodgment of an  F.I.R.  by  the  appellant’s  brother,
being F.I.R. No. 72 of 2003, on 5.8.2003 and a  case  was  registered  under
Sections 498-A, 323, 324, 504, 506  of  the  Indian  Penal  Code  (IPC)  and
Sections 3 and 4 of the Dowry Prohibition Act  against  1st  respondent  and
his family members.  The case was later transferred  to  the  Ladies  Police
Station, Rakab Ganj, Agra vide an  order  dated  12.9.2003  of  the  S.S.P.,
Agra.


4.    Family members of 1st respondent then approached  the  High  Court  of
Allahabad and filed a Criminal Miscellaneous Writ Petition No. 5426 of  2003
for quashing the F.I.R.   In that writ petition, the appellant was not  made
a party, but only her brother.  The family members  of  1st  respondent  had
submitted before the High Court that  an  amount  of  Rs.2,000/-  per  month
would be deposited in the Court of the Chief Judicial Magistrate, until  the
conclusion of the trial and the appellant  could  withdraw  the  same.   The
High Court on 17.9.2003 passed the following order:
           “Heard ld. Counsel for the petitioner and Ld. A.G.A.


           Learned  counsel  for  the  petitioner  has  agreed  to  deposit
      Rs.2,000/- (rupees two  thousand  only)  per  month  on  compassionate
      ground to be withdrawn by the wife of the petitioner Smt. Nazma.   The
      amount shall be deposited in the court of  Chief  Judicial  Magistrate
      concerned until the conclusion of trial.


           In the above said facts and circumstances,  since  investigation
      is only with regard to the matter pertaining to the  demand  of  dowry
      and some ancillary offences under Indian Penal Code, we  are  inclined
      to


           Interfere primarily with an intent to settle the dispute between
      the parties amicably.  The arrest of the  petitioners  in  case  crime
      No.227 of 2003, under Sections 498-A, 323, 324, 504, 506 IPC and Ss. 3
      and 4 of D.P. Act, Police Station Achhnera, District Agra,  shall  not
      be effected until the conclusion of investigation or submission of the
      report under Section 173 Cr.P.C.


            with this direction the petition is finally disposed of.”
                                                            (emphasis added)

The above order is seen passed by the High Court  with  the  intention  that
the parties would settle their disputes amicably.


5.    1st respondent also filed a Criminal Miscellaneous Writ  Petition  No.
5877 of 2003 before the High Court of Allahabad seeking  identical  reliefs.
Writ petition was filed without  making  the  appellant  or  his  brother  a
party.  Writ petition was  disposed  of  by  the  High  Court  on  25.9.2003
stating that 1st respondent should not be arrested until the  conclusion  of
the investigation or submission of any report under Section 173 of the  Code
of Criminal Procedure (CrPC), the operative portion of the  order  reads  as
follows:


           Heard ld. Counsel for the petitioner and ld. A.G.A.


           The arrest of other family members has been stayed  in  Criminal
      Misc. Writ Petition No. 5426/2003 (Smt. Amana and others Vs. State  of
      U.P. & others).  The said writ petition has been disposed of also with
      a direction to deposit Rs.2,000/- per  month.   This  petition  is  on
      behalf of husband.  The offences are under Section  498-A  I.P.C.  and
      some other ancillary offence under I.P.C. etc. photo copy of the order
      passed in the above said writ petition has been  produced  by  learned
      counsel for the petitioner.  It is placed on record.


           In this view of the matter, the arrest of the petitioner in case
      Crime No. 227 of 2003, under Sections 498-A, 323, 324, 504 and 506 IPC
      and Sections 3 and 4 of DP Act, P.S. Achhnera,  district  Agra,  shall
      not be effected until the conclusion of investigation or submission of
      any report under section 173 Cr.P.C.


           With this direction this petition is finally disposed of.”




6.     The  Investigating  Officer  then  filed  the  report   closing   the
investigation.  Learned Chief Judicial Magistrate, however, took  cognizance
of the case  and  issued  summons  vide  his  order  dated  15.1.2004.   1st
respondent challenged that order before  the  High  Court  of  Allahabad  in
Revision Petition No. 694 of 2004 which was dismissed by the High  Court  on
24.2.2004 by the following order:


           “Having heard the learned counsel for the parties, this revision
      petition is dismissed.  However, in the interest of justice, I  direct
      that if revisionist moves objections through counsel within two  weeks
      against the impugned order, the same may be disposed of  expeditiously
      and till the disposal of the objection the revisionist  shall  not  be
      arrested.”
                                                            (emphasis added)


7.    1st respondent filed  objections  before  the  learned  Magistrate  on
5.3.2004 with a prayer for recalling the summoning order dated 15.1.2004.


8.    1st respondent  then  filed  an  application,  Criminal  Miscellaneous
Application 133306 of 2004, in the disposed of Criminal  Miscellaneous  Writ
Petition No. 5877 of 2003.  The  High  Court  allowed  the  application  and
passed the following order on 26.8.2004:
           “Application is allowed.  The accused was directed to deposit  a
      sum of Rs.2,000/- per month until the conclusion of trial.


           Since the payment is to be made till the end of trial.  We  feel
      it expedient to stay their arrest until the conclusion of trial.”
                                                            (emphasis added)


In  that  application,  appellant  was  not  made  a  party  and  the  Court
practically reviewed its earlier order  dated  25.9.2003  and  extended  the
stay of arrest until the conclusion of the trial.  Earlier, by  order  dated
25.9.2003, the High Court had directed stay of arrest  till  the  conclusion
of the investigation or submission of any report under Section 173 CrPC  and
later vide order dated 26.8.2004, it was ordered  that  the  1st  respondent
should not be arrested until the conclusion  of  the  trial.   Against  this
order of the High Court, this appeal has been preferred  by  the  appellant-
wife.

9.    Shri Shiv Ram Sharma, learned counsel  appearing  for  the  appellant,
submitted that the High Court has committed a grave  error  in  entertaining
the  criminal  miscellaneous  application  in   a   disposed   of   criminal
miscellaneous writ petition and granting relief to 1st respondent.   Learned
counsel submitted that the practice of filing miscellaneous  application  in
disposed of writ petitions are on the rise, in spite of the fact  that  this
practice has been deprecated by this Court in various judgments.   Reference
was made to the judgment of this Court  in  Hari  Singh  Mann  v.  Harbhajan
Singh  Bajwa  and  Others  (2001)  1  SCC  169.    Learned  counsel  further
submitted that the High Court, by granting stay of arrest, is depriving  the
trial Courts of its power to issue orders under Section 439  CrPC.   Learned
counsel also submitted that the order of the High Court is also  interfering
with the powers of the Family Court in passing  appropriate  orders  in  the
application filed under Section 125 CrPC.

10.   Shri Arvind Kumar,  learned  counsel  appearing  for  the  respondent,
submitted that the High Court has only granted stay of  the  arrest  of  1st
respondent till the conclusion of the trial, consequently, no prejudice  has
been caused to the appellant.  Further, it was also  pointed  out  that  1st
respondent is depositing the amount of Rs.2,000/- per month in the Court  of
Chief Judicial Magistrate, Agra, as directed by  the  High  Court  and  that
appellant has made an application for  withdrawal  of  the  said  amount  as
well.  Further, it was also stated that since the appellant was not a  party
to the Criminal Writ Petition No. 5877  of  2003  as  well  as  in  Criminal
Miscellaneous Application No. 133306 of 2004, this appeal preferred  by  the
appellant is not maintainable.

11.   We are of the view that the High Court has committed a grave error  in
entertaining the criminal miscellaneous application No. 133306 of 2004 in  a
disposed of  Criminal  Writ  Petition  No.  5877  of  2003.   Criminal  Writ
Petition No. 5877 of 2003 was disposed of on 25.9.2003  directing  that  the
1st  respondent  should  not  be  arrested  until  the  conclusion  of   the
investigation or submission of any report under Section 173  CrPC.    On  an
application filed by the 1st respondent in  that  writ  petition,  the  High
Court later passed  an  order  on  26.8.2004  stating  that  the  petitioner
therein (1st respondent) be not arrested until the conclusion of the  trial.
 The practice of entertaining  miscellaneous  applications  in  disposed  of
writ petitions was deprecated by this Court  in  Hari  Singh  Mann  (supra).
Reference to the following paragraph of that judgment is apposite:

           “8. We have noted with disgust that  the  impugned  orders  were
      passed completely ignoring the basic principles of  criminal  law.  No
      review of  an  order  is  contemplated  under  the  Code  of  Criminal
      Procedure. After the disposal of the main petition on 7-1-1999,  there
      was no lis pending in the High Court wherein the respondent could have
      filed any  miscellaneous  petition.  The  filing  of  a  miscellaneous
      petition not referable to  any  provision  of  the  Code  of  Criminal
      Procedure or the rules of the  court,  cannot  be  resorted  to  as  a
      substitute of fresh litigation. The record of the proceedings produced
      before us shows that directions in the case filed by  the  respondents
      were issued apparently without notice to any of the respondents in the
      petition. Merely because Respondent 1 was an Advocate, did not justify
      the issuance of directions at his request without notice of the  other
      side. The impugned orders dated 30-4-1999 and 21-7-1999 could not have
      been passed by the High Court under its inherent power  under  Section
      482 of  the  Code  of  Criminal  Procedure.  The  practice  of  filing
      miscellaneous petitions after  the  disposal  of  the  main  case  and
      issuance of fresh directions in such miscellaneous  petitions  by  the
      High Court are unwarranted, not referable to any  statutory  provision
      and in substance the abuse of the process of the court.”




12.   We are sorry to note that in spite of the clear pronouncement  of  law
by this Court, still, the High Courts are passing the similar orders,  which
practice has to be deprecated in the strongest terms.    Of late, we  notice
that the High Courts are entertaining writ petitions under Articles 226  and
227 of the Constitution, so also under Section  482  CrPC  and  passing  and
interfering with various orders granting  or  rejecting  request  for  bail,
which is the function of ordinary Criminal Court.  The  jurisdiction  vested
on the High Court under Articles 226 and 227 of the Constitution as well  as
Section 482 CrPC are all exceptional in  nature  and  to  be  used  in  most
exceptional cases.    The  jurisdiction  under  Section  439  CrPC  is  also
discretionary and it is  required  to  be  exercised  with  great  care  and
caution.


13.   We are of the view that the High Court has committed a grave error  in
not only entertaining the criminal miscellaneous application in  a  disposed
of writ  petition,  but  also  passing  an  order  not  to  arrest  the  1st
respondent till the conclusion of the  trial.   Grant  of  bail  or  not  to
grant, is within the powers of the  regular  Criminal  Court  and  the  High
Court, in  its  inherent  jurisdiction,  not  justified  in  usurping  their
powers.  Once the criminal writ petition has  been  disposed  of,  the  High
Court becomes functus officio  and  cannot  entertain  review  petitions  or
miscellaneous  applications  except  for  carrying  out   typographical   or
clerical errors.  In the instant case, the  High  Court  has  entertained  a
petition in a disposed of criminal writ petition and granted reliefs,  which
is impermissible in law.


14.   We are, therefore, inclined to allow this appeal  and  set  aside  the
impugned order passed by the High Court, with costs  of  Rs.25,000/-  to  be
paid by 1st respondent to the appellant, within a period of two months.
                                            ……………………………………….…J
                                            (K. S. RADHAKRISHNAN)





                                            ……………………………………..J.
                                            (DIPAK MISRA)
New Delhi,
October 19, 2012

whether the Court of the Chief Metropolitan Magistrate was competent to remand the accused beyond 15 days for offences under the provisions of the Unlawful Activities (Prevention) Act, 1967.the provisions of Section 167(2) of the Code were modified by virtue of Section 43D of the Unlawful Activities (Prevention) Act, 1967. The modification of the provisions of Section 167(2) Cr.P.C. by virtue of Section 43D of the aforesaid Act is extracted hereinbelow :- “43D. Modified application of certain provisions of the Code. - (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and "cognizable case" as defined in that clause shall be construed accordingly. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),- (a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and (b) after the proviso, the following provisos shall be inserted, namely:- Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.". By virtue of the aforesaid modification to the provisions of Section 167(2) Cr.P.C., the period of 90 days stipulated for completion of investigation and filing of charge-sheet, was modified by virtue of the amended proviso, which indicated that if the investigation could not be completed within 90 days and if the Court was satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the period of 90 days, extend the said period upto 180 days. In other words, the custody of an accused could be directed initially for a period of 90 days and, thereafter, for a further period of 90 days, in all a total of 180 days, for the purpose of filing charge-sheet. In the event the charge-sheet was not filed even within the extended period of 180 days, the conditions directing that the accused persons shall be released on bail if he is prepared to do and does furnish bail, would become operative. It is well-established that if an accused does not exercise his right to grant of statutory bail before charge-sheet is filed, he loses his right to such benefit once such charge-sheet is filed and can, thereafter, only apply for regular bail.- the Appellant acquired the right for grant of statutory bail on 17th July, 2012, when his custody was held to be illegal by the Additional Sessions Judge since his application for statutory bail was pending at the time when the application for extension of time for continuing the investigation was filed by the prosecution. We therefore, allow the appeal, set aside the order dated 20th July, 2012, passed by the Chief Metropolitan Magistrate extending the time of investigation and custody of the accused for 90 days, with retrospective effect from 2nd June, 2012, and the orders of the High Court dated 2nd July, 2012, 6th July, 2012 and 6th August, 2012, impugned in the appeal and direct that the Appellant be released on bail to the satisfaction of the Chief Metropolitan Magistrate, upon such conditions as may be deemed fit and proper, including surrender of passport, reporting to the local police station, and not leaving the city limits where the Appellant would be residing without the leave of the Court, so as to ensure the presence of the accused-Appellant at the time of the trial.

|REPORTABLE              |

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NOS.1695-1697  OF 2012
                    (@ S.L.P.(CRL) NOS.6965-6967 OF 2012)



1 SAYED MOHD. AHMED KAZMI               …    APPELLANT


           Vs.



           2 STATE, GNCTD & ORS.                   …    RESPONDENTS





                                  O R D E R



ALTAMAS KABIR, CJI.



1.    Leave granted.

2.    These appeals arise out the judgment and orders dated 2nd July,  2012,
6th July, 2012 and 6th August, 2012, passed by the Delhi High Court in  Crl.
M.C. No.2180 of 2012.
3.    By virtue of the first order dated 2nd  July,  2012,  the  High  Court
issued notice on the question whether the Court of  the  Chief  Metropolitan
Magistrate was competent to remand the accused beyond 15 days  for  offences
under the provisions of the  Unlawful  Activities  (Prevention)  Act,  1967.
Notice was also issued to the learned  Additional  Solicitor  General  since
the  case  involved  interpretation  of  the  provisions  of  the   National
Investigation Agency Act, 2008, the Code of  Criminal  Procedure,  1973  and
the abovementioned Unlawful Activities (Prevention) Act, 1967.   Proceedings
pending before the learned Additional Sessions Judge, Central-II, Delhi,  in
CR No.86 of 2012, were also stayed till the next date  of  hearing  and  the
matter was directed to be listed on  9th  October,  2012.  By  a  subsequent
order dated 6th July, 2012, the High Court modified its  earlier  order  and
directed the Chief Metropolitan Magistrate  to  extend  the  remand  of  the
accused and to take cognizance of offences  under  the  Unlawful  Activities
(Prevention) Act, 1967.  By yet another order dated 6th  August,  2012,  the
High Court rejected the Appellant’s prayer for early hearing of  the  matter
indicating that in view of the heavy board of the Court it was not  possible
to accommodate the Appellant’s request for early hearing.

4.    Although, the Special Leave Petition was  directed  against  the  said
three orders, during the hearing thereof, another  question  of  substantial
importance surfaced when on behalf of the Appellant  an  application,  being
Crl. M.A. No.19883-85 of 2012 for grant  of  statutory  bail  under  Section
167(2) Cr.P.C. was filed, and was  taken  up  for  hearing  along  with  the
appeal.

5.    Appearing in support of  the  Appeals,  Mr.  Mehmood  Pracha,  learned
Advocate, urged that on 13th February, 2012, the police registered FIR  No.4
of 2012 in  respect  of  offences  alleged  to  have  been  committed  under
Sections 307, 427 and 120-B of the Indian Penal Code in connection  with  an
explosion involving an Israeli Embassy  vehicle  carrying  the  wife  of  an
Israeli Diplomat which had occurred at about  3.15  p.m.  at  the  Aurangzeb
Road/Safdarjung Road crossing.  The alleged offences were later  amended  to
cover Sections 16 and 18 of the Unlawful Activities (Prevention) Act,  1967.


6.    On 6th March, 2012,  the  Appellant,  Sayed  Mohd.  Ahmed  Kazmi,  was
apprehended by some unidentified men  in  plain  clothes  from  outside  the
Indian Islamic Culture Centre at Lodhi Road at  about  11.30  p.m.   He  was
produced before the learned Chief  Metropolitan  Magistrate  on  7th  March,
2012, who remanded  him  to  20  day  police  custody,  subject  to  certain
conditions.  On 25th March, 2012, the  Investigating  Agency  completed  its
investigation, two days prior to the expiry of the  20  day  remand  period,
and  the  learned  Magistrate  was  informed  that  no   further   custodial
interrogation of the Appellant was  required.  Consequently,  the  Appellant
was sent to judicial custody for a further period of 14 days.

7.    On 28th March, 2012, a prayer for bail  was  made  on  behalf  of  the
Appellant under Section 437 Cr.P.C.  The said  application  was  heard,  but
the Appellant’s prayer for  bail  was  rejected  on  3rd  April,  2012.   In
between various other proceedings were taken with regard to  the  inspection
of the damaged car.

8.    On 2nd June,  2012,  the  Appellant  was  produced  before  the  Chief
Metropolitan Magistrate, since his 90 days’ period of custody was to  expire
on 3rd June, 2012, and further custody of 90 days’ was  sought  for  by  the
prosecution.  The learned Magistrate by his  order  dated  2nd  June,  2012,
extended the period of investigation and the custody  of  the  Appellant  by
another 90 days.   The said order dated 2nd June, 2012,  was  challenged  by
the Appellant by way of CR No.86 of 2012 which  came  up  for  consideration
before the learned Additional Sessions Judge on 8th June, 2012. The  learned
Additional Sessions Judge, inter alia, held that it was  only  the  Sessions
Court and not the Chief Metropolitan Magistrate which had the competence  to
even extend the judicial custody of the accused and to  entertain  cases  of
such nature.

9.    On 22nd June, 2012, the Appellant  was  produced  before  the  learned
Chief Judicial Magistrate for extension of his custody. However,  on  behalf
of the Appellant, an application had been made under Section 167(2)  Cr.P.C.
on 17th July, 2012, seeking default bail as no charge-sheet had  been  filed
within the 90 day period of the Appellant’s custody.  The  said  application
was dismissed by the learned Magistrate despite  the  observations  made  by
the Additional Sessions Judge in his order of 8th June, 2012.

10.    The  matter  was,  thereafter,  referred   by   the   learned   Chief
Metropolitan Magistrate to the District  and  Sessions  Judge  who  directed
that the judicial custody of the Appellant be extended till 3rd July,  2012.
 On 30th June, 2012, without serving any notice to the Appellant, the  State
filed Crl. M.C. No.2180 of 2012 under Section 482 Cr.P.C.  before  the  High
Court  questioning  the  validity  of  the  order  passed  by  the   learned
Additional Sessions Judge on 8th June, 2012. By its order  dated  2nd  July,
2012, the High Court stayed the  observations  of  the  Additional  Sessions
Judge, Central II, Delhi, in CR No.86 of 2012.  The Appellant’s  application
for grant of statutory bail  could  not,  therefore,  be  taken  up  by  the
Additional Sessions Judge till the High Court on 13th  July,  2012,  vacated
the stay in respect of the proceedings in CR No.86 of 2012,  subject  to  an
undertaking to be given that the question  of  law  involved  would  not  be
agitated and the revision would be restricted only to  the  factual  aspects
of the case.  In that context,  on  the  same  date,  the  counsel  for  the
Appellant moved another application before the  learned  Chief  Metropolitan
Magistrate under  Section  167(4)  Cr.P.C.  and  the  same  was  listed  for
consideration on 17th July, 2012.  In the meantime, on 16th July,  2012,  CR
No.86 of 2012 which had been filed  by  the  Appellant  came  up  for  final
arguments and on 17th July, 2012, the Additional Sessions Judge allowed  the
application and held that the custody of the Appellant was illegal.

11.   In  view  of  the  order  passed  by  the  Additional  Sessions  Judge
declaring the Appellant’s custody to be illegal, on the  same  day,  counsel
for the Appellant appeared before the Chief Metropolitan Magistrate and  the
application under Section  167(2)  Cr.P.C.  was  listed  for  hearing,  but,
instead of hearing the application on the said date, the Chief  Metropolitan
Magistrate renotified the hearing for 18th July, 2012.

12.   On 18th July, 2012, the State filed a  fresh  application  before  the
Chief Metropolitan Magistrate seeking further extension of  the  Appellant’s
custody and the investigation period.  On receiving  the  said  application,
the learned Chief Metropolitan  Magistrate  directed  a  copy  of  the  said
application to be served on the counsel for  the  Appellant  and  renotified
the matter for hearing on 20th July, 2012.

13.   On 20th July, 2012, the Chief  Metropolitan  Magistrate  took  up  the
application for extension of custody filed  on  behalf  of  the  prosecution
instead of considering the  Appellant’s  application  under  Section  167(2)
Cr.P.C. and by his order  of  even  date,  the  learned  Chief  Metropolitan
Magistrate extended the time of interrogation and custody of  the  Appellant
for 90 days with retrospective effect from 2nd June, 2012.

14.   The aforesaid order of the learned Chief Metropolitan  Magistrate  was
challenged by the Appellant by way of CR  No.86  of  2012  in  the  Sessions
Court.  The Additional Sessions Judge in  his  order  of  30th  July,  2012,
observed that the said revisional application involved  mixed  questions  of
law and fact and adjourned the matter  till  12th  October,  2012.   In  the
meantime, on 31st July, 2012, the prosecution filed charge-sheet.  This  was
followed by the Appellant’s application before the High Court in  Crl.  M.A.
No.13484 of 2012 for early  hearing,  on  which  the  High  Court  made  the
observation that on account of the heavy board  of  the  Court  it  was  not
possible to accommodate the request for early hearing  and  the  matter  was
renotified to 9th October, 2012,  which  is  the  impugned  order  in  these
appeals.

15.   Appearing for the Appellant, Mr.  Mehmood  Pracha,  learned  Advocate,
contended that once the period  of  90  days,  as  stipulated  under  clause
(a)(i) of the proviso to Subsection (2) of Section 167 Cr.P.C., came  to  an
end, the right of a person arrested in connection with the commission of  an
offence to be  released  on  statutory  bail  commenced  and  could  not  be
extinguished by a subsequent application for  extension  of  the  period  of
custody.  Mr. Pracha submitted that on  17th  July,  2012,  the  Appellant’s
custody was held to be illegal by the Additional Sessions Judge in CR  No.86
of 2012 and on the same  day,  the  Appellant’s  application  under  Section
167(2) Cr.P.C. was pending hearing before  the  learned  Chief  Metropolitan
Magistrate, who, however, did not hear the application  and  renotified  the
hearing  for  18th  July,  2012.   The  fact  that  the  application   stood
renotified  for  the  next  day,  did  not  take  away  the  fact  that  the
application was pending on 17th July, 2012, when the period  of  custody  of
the Appellant had not only ended, but had been declared to be illegal.   Mr.
Pracha submitted that the application of 18th July, 2012,  filed  on  behalf
of the prosecution for  extension  of  the  period  of  custody,  which  was
allowed by the learned Chief Metropolitan Magistrate  on  20th  July,  2012,
without  considering  the  Appellant’s  application  under  Section   167(2)
Cr.P.C. and the subsequent extension of time of  investigation  and  custody
of the Appellant with retrospective effect from  2nd  June,  2012,  did  not
improve the matter to any extent, as far as the  prosecution  is  concerned,
since on the expiry of the first period of custody  beyond  90  days,  there
was no application pending for  extension  of  the  period  of  custody,  as
contemplated under the amended provisions of  Section 167(2) Cr.P.C.

16.   At this juncture, it may be useful to indicate that the provisions  of
Section 167(2) of the Code were modified by virtue of  Section  43D  of  the
Unlawful  Activities  (Prevention)  Act,  1967.   The  modification  of  the
provisions of Section 167(2)  Cr.P.C.  by  virtue  of  Section  43D  of  the
aforesaid Act is extracted hereinbelow :-


           “43D. Modified application of certain provisions of the Code.  -
           (1) Notwithstanding anything contained in the Code or any  other
           law, every offence punishable under this Act shall be deemed  to
           be a cognizable offence within the  meaning  of  clause  (c)  of
           section 2 of the Code, and "cognizable case" as defined in  that
           clause shall be construed accordingly.

           (2) Section 167 of the Code shall apply in relation  to  a  case
           involving an offence punishable under this Act  subject  to  the
           modification that in sub-section (2),-


           (a) the references to "fifteen days", "ninety days"  and  "sixty
           days", wherever they occur, shall be construed as references  to
           "thirty days", "ninety days" and "ninety days" respectively; and




           (b) after the proviso, the following provisos shall be inserted,
           namely:-


           Provided further that if it is  not  possible  to  complete  the
           investigation within the said period of ninety days,  the  Court
           may if it is satisfied with the report of the Public  Prosecutor
           indicating the progress of the investigation  and  the  specific
           reasons for the detention of the accused beyond the said  period
           of ninety days, extend the said period up  to  one  hundred  and
           eighty days:


           Provided  also  that  if   the   police   officer   making   the
           investigation under this Act,  requests,  for  the  purposes  of
           investigation, for police custody from judicial custody  of  any
           person in judicial custody, he shall file an  affidavit  stating
           the reasons for doing so and shall also explain  the  delay,  if
           any, for requesting such police custody.".

17.   By virtue of the aforesaid modification to the provisions  of  Section
167(2)  Cr.P.C.,  the  period  of  90  days  stipulated  for  completion  of
investigation and filing of charge-sheet, was  modified  by  virtue  of  the
amended proviso, which indicated that if  the  investigation  could  not  be
completed within 90 days and if the Court was satisfied with the  report  of
the Public Prosecutor indicating the progress of the investigation  and  the
specific reasons for detention of the accused beyond the period of 90  days,
extend the said period upto 180 days.  In other words,  the  custody  of  an
accused  could  be  directed  initially  for  a  period  of  90  days   and,
thereafter, for a further period of 90 days, in all a  total  of  180  days,
for the purpose of filing charge-sheet. In the event  the  charge-sheet  was
not filed even within the  extended  period  of  180  days,  the  conditions
directing that the accused persons shall  be  released  on  bail  if  he  is
prepared to do and does furnish bail, would become operative.

18.   Mr. Pracha submitted that in the instant  case  on  17th  July,  2012,
when the Appellant’s initial custody was held to be illegal,  the  right  of
the Appellant to grant of  statutory  bail  under  clause  (a)(ii)  of  Sub-
section (2) of  Section  167  became  operative  and  the  Appellant  became
entitled to grant of statutory bail and the mere fact that on  a  subsequent
application for extension  of  the  period  of  custody,  such  custody  was
extended, was immaterial and was of no consequence, as  had  been  contended
in the High Court on behalf of the prosecution.

19.   In support of his submissions, Mr. Pracha referred to and relied  upon
a Three-Judge Bench decision of this Court  in  Uday  Mohanlal  Acharya  Vs.
State of Maharashtra [(2001) 5 SCC 453],  wherein  while  referring  to  the
earlier decision of this Court in the case of Sanjay Dutt Vs. State  through
CBI [(1994) 5 SCC 410],  this  Court  interpreted  the  expression  “if  not
already availed of” to mean  that  the  Magistrate  has  to  dispose  of  an
application under Section 167(2) forthwith and on being satisfied  that  the
accused had been in custody for the specified period, that  no  charge-sheet
had been filed and that the  accused  was  prepared  to  furnish  bail,  the
Magistrate is obliged to grant  bail,  even  if  after  the  filing  of  the
application by the accused  a  charge-sheet  had  been  filed.   Mr.  Pracha
submitted that so long as an application was pending before  a  charge-sheet
had been filed after the expiry of  the  stipulated  period  for  filing  of
charge-sheet, the accused had  an  indefeasible  right  to  be  released  on
statutory bail, as contemplated under the proviso to Section 167(2)  Cr.P.C.
Mr. Pracha submitted that the aforesaid decision was ad idem with the  facts
of the instant case,  wherein  the  Appellant’s  application  for  grant  of
statutory bail was pending on the  day  when  the  Appellant’s  custody  was
declared to be illegal by the Additional Sessions Judge.

20.    Mr. Pracha submitted that the  order  passed  by  the  learned  Chief
Metropolitan Magistrate as  also  the  High  Court,  were  not  sustainable,
having been made in  contravention  of  the  provisions  of  Section  167(2)
Cr.P.C. and were, therefore, liable to be set aside and  the  Appellant  was
entitled to be released on statutory bail.

21.   On the other hand, learned Additional Solicitor General, Mr. Harin  P.
Raval, contended that there had been no breach of the provisions of  Section
167(2) Cr.P.C. as the right of the Appellant for  grant  of  statutory  bail
stood extinguished once the  application  for  extension  of  the  time  for
completing investigation had been filed by the  prosecution  on  18th  July,
2012.  Mr. Raval contended that it was settled law that if  an  accused  did
not avail of the remedy contemplated under  Section  167(2)  Cr.P.C.  before
the charge-sheet was filed, such right was no longer  indefeasible  and  was
rendered nugatory upon filing of the charge-sheet.

22.   In support  of  his  submissions,  the  learned  Additional  Solicitor
General referred to the Constitution Bench decision of  this  Court  in  the
case of Sanjay Dutt (supra), wherein the aforesaid proposition  of  law  was
considered. The learned Additional Solicitor General submitted that  it  had
been held by  the  Constitution  Bench  that  in  matters  relating  to  the
Terrorist and Disruptive  Activities  (Prevention)  Act,  1987,  default  in
completion  of  investigation  within  180  days   gave   the   accused   an
indefeasible right to bail, but the  time  of  default  continues  till  the
filing of the challan, but does not survive thereafter.  It  was  held  that
after filing of the challan, grant of bail  would  have  to  be  decided  on
merit.  Reference was also made to the decision of this Court in  Dr.  Bipin
Shantilal Panchal v. State of Gujarat [(1996)1 SCC 718], in which  the  same
legal position was reiterated.

23.   The   learned Additional Solicitor General  submitted  that  once  the
period for completing  investigation  was  extended  on  18.7.2012  and  the
Appellant’s application, if any, for statutory bail remained  undecided,  by
virtue of the ratio of the decisions in the case of Sanjay Dutt (supra)  and
the subsequent case of Dr. Bipin Shantilal Panchal (supra),  the  right,  if
any, of the Appellant for grant of statutory  bail  was  rendered  null  and
void. The learned Additional Solicitor General,  therefore,  submitted  that
no  interference  was  called  for  in  the  order  passed  by  the  learned
Additional Sessions Judge and also of the High  Court  and  the  appeal  was
liable to be dismissed.

24.   Having carefully considered the submissions  made  on  behalf  of  the
respective parties, the relevant provisions of law and the  decision  cited,
we are unable to accept the submissions advanced on behalf of the  State  by
the learned Additional Solicitor General, Mr. Raval.  There  is  no  denying
the fact that on 17th July, 2012, when CR No.86 of 2012 was allowed  by  the
Additional Sessions Judge and the custody of the Appellant was  held  to  be
illegal and an application under Section 167 (2) Cr.P.C. was made on  behalf
of the Appellant for grant of statutory bail which was listed  for  hearing.
Instead of  hearing  the  application,  the  Chief  Metropolitan  Magistrate
adjourned the same till the next day when the  Public  Prosecutor  filed  an
application for extension of the period of custody and investigation and  on
20th July, 2012 extended the time of investigation and the  custody  of  the
Appellant for a further period of 90 days  with  retrospective  effect  from
2nd June, 2012.  Not only is the retrospectivity of the order of  the  Chief
Metropolitan Magistrate untenable, it could not also  defeat  the  statutory
right which had accrued to the Appellant on the expiry of 90 days  from  the
date when the Appellant was taken into custody.  Such  right,  as  has  been
commented upon by this Court in the case of  Sanjay  Dutt  (supra)  and  the
other cases cited by the learned Additional Solicitor  General,  could  only
be distinguished  once the charge-sheet had been filed in the  case  and  no
application has been made prior thereto for grant of statutory bail.  It  is
well-established that if an accused does not exercise his right to grant  of
statutory bail before charge-sheet is filed, he  loses  his  right  to  such
benefit once such charge-sheet is filed and can, thereafter, only apply  for
regular bail.

25.   The circumstances, in this case, however, are different  in  that  the
Appellant had exercised his right to statutory bail on the very same day  on
which his custody was held to be illegal and such an  application  was  left
undecided by the Chief Metropolitan Magistrate till  after  the  application
filed by the prosecution for extension of  time  to  complete  investigation
was taken up and orders were passed thereupon.

26.   We are unable  to  appreciate  the  procedure  adopted  by  the  Chief
Metropolitan Magistrate, which has been endorsed by the High  Court  and  we
are of the  view  that  the  Appellant  acquired  the  right  for  grant  of
statutory bail on 17th July, 2012, when his custody was held to  be  illegal
by the Additional Sessions Judge since his application  for  statutory  bail
was pending at the time when the  application  for  extension  of  time  for
continuing the investigation was filed by the  prosecution.   In  our  view,
the right of the Appellant to grant of statutory  bail  remained  unaffected
by the subsequent application and both  the  Chief  Metropolitan  Magistrate
and the High Court erred in holding otherwise.

27.   We therefore, allow the appeal, set aside the order dated  20th  July,
2012, passed by the Chief Metropolitan  Magistrate  extending  the  time  of
investigation and custody of the accused for  90  days,  with  retrospective
effect from 2nd June, 2012, and the orders  of  the  High  Court  dated  2nd
July, 2012, 6th July, 2012 and 6th August, 2012, impugned in the appeal  and
direct that the Appellant be released on bail to  the  satisfaction  of  the
Chief Metropolitan Magistrate, upon such conditions as  may  be  deemed  fit
and proper, including surrender of passport, reporting to the  local  police
station,  and not leaving the city  limits  where  the  Appellant  would  be
residing without the leave of the Court, so as to  ensure  the  presence  of
the accused-Appellant at the time of the trial.




                                                     …………………………………………………CJI.

                                         (ALTAMAS KABIR)



                                                    …………………………………………………………J.

                                         (SURINDER SINGH NIJJAR)



                                                    …………………………………………………………J.
                                        (J.CHELAMESWAR)

New Delhi,
Dated: 19.10.2012.
-----------------------
25

It is precisely for this reason that Rules framed by several High Courts (Allahabad, Andhra Pradesh, Mumbai, Delhi, Gujarat, Himachal Pradesh, Kerala, Chennai, Orissa, Patna, Punjab and Rajasthan) specifically require that the alleged adulterer should be impleaded as a co-respondent in a petition under S.13(1)(i) of Hindu Marriage Act, even though no relief may be claimed against him. "Co-respondent-(1) Where a husband's petition alleges adultery on the part of respondent, the alleged adulterer shall if he is living be made a co-respondent in the petition: Provided, however, that in case the adulterer's name, identity or whereabouts are unknown to the petitioner inspite of reasonable inquiries made and the Court is satisfied that it is just and expedient so to do, it shall, on the application of the petitioner, dispense with the naming of the co-respondent. (2) In every petition under Sec. 13(2) of the Act the petitioner shall make 'the other wife' mentioned in that Section a co-respondent. (3) In every petition under Sec.11 of the Act, on the ground, that the condition in Sec. 5(i) is contravened, the petitioner shall make the spouse, alleged to be living at the time of the marriage, a co-respondent." - THERE can be no doubt that in a proceeding where the Court has to decide whether the spouse of the petitioner had voluntary sexual intercourse with another person, by adding such person (alleged adulterer) as a Respondent, the Court would be in a better position to effectually and completely adjudicate upon the controversy. Nor can it be said that in a proceeding under S. 13(1)(i) of H.M. Act, when the spouse and alleged adulterer are impleaded as respondents, the alleged adulterer is improperly joined as a Respondent. Therefore the alleged adulterer will be a proper party to a proceeding under S.13(1)(i) of H.M. Act. The Family court and the learned single Judge merely concentrated on the fact no relief was sought against the Second Respondent. They, therefore, considered only whether the adulterer is a necessary party to a petition seeking divorce on the ground of adultery, but completely ignored that the alleged adulterer is a proper party.

HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY        

F.C.A.No.21 of 2009

12-09-2012

Smt. Ch. Padmavathi

Ch. Sai Babu.

Counsel for the petitioner: Sri P.V. Ramana

Counsel for Respondent: Sri G. Rama Gopal

<Gist:

>Head Note:

?Cases referred:
1. AIR 1988 AP 68
2. 2000(2) ALD 723 (DB)
3. AIR 1975 ALL. 94
4. AIR 2003 KARNATAKA 508  

JUDGMENT: (per Hon'ble Sri Justice G.Krishna Mohan Reddy)  

        This appeal is preferred challenging order dated 24-01-2008 passed in
O.P.No.121 of 2005 (OP) on the file of the Judge, Family Court at Warangal
upholding the plea of the respondent/petitioner in the OP to dissolve marriage
between him and the appellant/respondent in the OP by a decree of divorce.
2.      For the sake of convenience, we refer the parties hereinafter as they are
arrayed in the OP.
3.      The OP was allowed in favour of the petitioner coming to the conclusion
that he could prove adultery between the respondent and one R. Narasimha Rao, a
Shunter in Railways, by reason of which it was also held that her cruelty
against the petitioner was also established consequently aggrieved by which the
present appeal has been preferred.
4.      It is necessary to note briefly the claims or allegations made by the
petitioner and the respondent in the case for proper appreciation of the matter
respectively.  Admittedly, the marriage of the petitioner and the respondent
took place on 26-05-1994.    It is claimed by the petitioner that both of them
lived together for 10 years thereafter during which they begot two daughters
namely Varshini and Jyositha on 25-06-1995 and 17-11-1997 respectively.  He
worked in Railways at several places. It is alleged by him that the respondent
was habituated to luxurious life, she used to harass him to meet her unlawful
demands in that context which were beyond his capacity and even though he
explained his plight and tried to convince her, she did not change or mend
herself.  It is also alleged by him that she and her mother always harassed him
mentally and physically to give money for meeting her mother's debts.   He
claims that because of their attitude, he was not able to discharge his duties,
whereas unable to cope up with the attitude of the respondent, he issued a legal
notice on 10-06-2003 mentioning various unpleasant incidents that occurred in
between them and also seeking her to cooperate with him for obtaining divorce in
between them, but she did not give any reply, however, at a belated stage, she
promised to mend herself which he believed, but she continued to behave as
before.  It is alleged by him further that on 16-06-2006 at about 5-00 a.m. when
he returned home, he found her in compromising position with his colleague R.
Narasimha Rao, a Shunter in Railways, who fled away having seen him following
which he raised hue and cry, however on the other hand, she approached her
relatives namely Chander Rao, D. Seetha Ramaiah and Srinivas, who came to his
house on
19-06-2005 and who were appraised of the said incident, but those persons and
the respondent mercilessly beat him and caused bleeding injuries on his head, in
consequence of which he was admitted in Rohini Hospital, Hanmakonda followed by
giving a report in the police station at Subedari against the respondent, but no
action was taken by the police having been influenced by the respondent, as a
result of which he filed complaint on the file of the IV Additional Judicial
Magistrate of First Class, Warangal against her and others to prosecute them for
offences punishable under Sections 326, 420, 448, 497 and 506 read with 34 of
IPC which was forwarded to the police concerned for necessary investigation and
report, but again no action was taken by the police.
5.      The plea of the respondent is total denial of the allegations made against
her.  She claims that at the time of marriage, her parents gave Rs.1,40,000/- as
dowry and Rs.60,000/- as loan and her grandfather presented 17 soverins of gold
apart from giving household articles to the petitioner. She alleged that the
petitioner along with his mother and sister harassed her several ways narrating
several incidents.  It is also according to her that the said R. Narasimha Rao,
a friend of the petitioner, used to come to their house which circumstance was
taken advantage of to create a false story of adultery.
6.      For the petitioner, he got himself examined as PW-1 and got examined one
Qamarunnisa Begum as PW-2 and got marked Exs.A-1 to A-7.  For the respondent,  
she got herself examined as RW-1 and got marked Exs.B-1 to B-3.
7.      Evidence was let in in accordance with the pleas taken in the petition and
counter. Whereas PW-1 deposed as per the averments made in the petition, PW-2  
deposed as follows - she was the neighbour of the petitioner, on 16-06-2005 at
about
5-00 PM, the petitioner after attending to his job returned back, later she
found him raising hue and cry that his wife was not opening the doors of their
house even though he called her, then she got woke up and then found one person
running in front of her carrying clothes and rushing to the ground floor of the
house and also leaving the place.  She also deposed that after the said person
went out of the house of the parties, the respondent opened the doors of their
house.   She further deposed that she was informed that the said person was one
Narasimha Rao, a colleague of the petitioner, and on her enquiry, the petitioner
revealed that the respondent was leading adulterous life with that person.
She further deposed that she then went into the bedroom of the house of the
parties in the ground floor and found the petitioner raising hue and cry that he
would commit suicide expressing that he could not live with the respondent,
following which she (PW-2) requested him not to commit suicide and also
convinced him to see that the matter was settled amicably.  She also deposed
that immediately the petitioner went out to inform the relatives of the
respondent about the incident.
8.      The Court below mainly accepted the evidence of PW-2 on the ground that
there was no need for her to speak falsehood, while accepting the evidence of
PW-1 also. The Court below consequently held that the respondent was guilty of
cruelty against the petitioner also.  The Court below observed that the
adulterer need not be added as a party in the OP following the decision reported
in GALI KONDAIAH v. GALI ANKAMMA 1, in which with regards to the same question     
of impleading an adulterer, observed that Rule 8 of the Rules framed under the
Hindu Marriage Act which provides "where a husband's petition alleges adultery
on the part of the respondent, the alleged adulterer shall, if he is living, be
made a co-respondent in the petition.", was not applicable because it was
enacted prior to the amendment of Section 13 of the Act by reason of which
provision (Section 13) even a stray incident of sexual intercourse between one
of the spouses with any other person would come under the purview of that
provision for granting divorce in favour of the other spouse.  As found in the
discussion made in the impugned order, learned Advocate for the respondent
relied upon a decision reported in MIRAPALA VENKATA RAMANA v. MIRAPALA PEDDIRAJU           
2 to assert that without adding the adulterer, he being a necessary party, the
petition should not be entertained, but it appears that that decision was not at
all considered by the Court below.
        9.      Learned counsel for the respondent likewise would contend that when
there is a plea of adultery, the adulterer is a necessary party whereby non-
adding of him as a party is fatal to proceed with the case.    On the other hand
learned counsel for the petitioner would contend that in view of the amendment
of Section 13(1(i), the adulterer need not be added as a party in the case.
        10.     Therefore, it is to be deliberated about the question of adding the
so-called adulterer as a party to the petition as a condition precedent to
entertain the matter in the light of various circumstances enumerated and also
consequently how far the verdict of the Court below is sustainable.
        11.     In MIRAPALA VENKATA RAMANA's case (2 supra), this Court, having    
examined similar question of adding of an adulterer with reference to necessary
pleadings and evidence adduced, held that in a case of divorce basing on
adultery, the alleged adulterer being a necessary party, ought to have been made
as the second respondent in the case, but the petitioner-husband failed to
implead him by reason of which, the O.P. was bad for non-joinder of necessary
party having been fortified by a judgment of Allahabad High Court in UDAI NARAIN
BAJPAI v. SMT. KUSUM BAJPAI 3, wherein it was held as follows:  
"Learned Counsel for the respondent also placed reliance on the decision in AIR
1942 ALL. 223 (supra) for the purpose of contending that till such time as the
appellant's application for amendment of his petition by addition of the alleged
adulterers as co-respondents was allowed and the petition was amended
accordingly, it was not in accordance with law and not maintainable.  It was
urged that till the co-respondents were impleaded it was not open to the Court
either to frame issues in the petition or admit evidence on issue No.5 and
consequently the framing of the issues by the trial Court as well as the finding
on issue No.5 are without jurisdiction. There is force in this contention which
must be accepted."

There was no specific discussion in that decision of this Court with regards to
the question of application of Rule 8 of the Rules which was enacted prior to
the amendment of Section 13 of the Act.   This poses a question as to whether
the decision rendered in MIRAPALA VENKATA RAMANA's case (2 supra) can be held to    
be applicable here by virtue of the said Rule.
        12.     It is to be very much reckoned with what is contained in Rule 8
which reads as follows:
"Co-respondent-(1) Where a husband's petition alleges adultery on the part of
respondent, the alleged adulterer shall if he is living be made a co-respondent
in the petition:
Provided, however, that in case the adulterer's name, identity or whereabouts
are unknown to the petitioner inspite of reasonable inquiries made and the Court
is satisfied that it is just and expedient so to do, it shall, on the
application of the petitioner, dispense with the naming of the co-respondent.
(2)     In every petition under Sec. 13(2) of the Act the petitioner shall make
'the other wife' mentioned in that Section a co-respondent.
(3)     In every petition under Sec.11 of the Act, on the ground, that the
condition in Sec. 5(i) is contravened, the petitioner shall make the spouse,
alleged to be living at the time of the marriage, a co-respondent."

        The first clause is relevant here.  There is no express provision by which
this provision has been deleted.  Significantly this provision in clear terms
enjoins that where a husband's petition alleges adultery on the part of the
respondent, the alleged adulterer shall if he is living be made a co-respondent
in the petition subject to the proviso incorporated thereunder, but this proviso
is not applicable here because it is not the case of the parties that the
identity of the alleged adulterer has not been known to the petitioner.  If this
Rule is to be enforced, definitely the alleged adulterer should be made as the
co-respondent in the petition for the effective disposal of the case.  This
depends upon whether by virtue of the enactment of the amended provision of
Section 13(1)(i), the same provision became redundant.  On the other hand, the
amended provision of Section 13(1(i) of the Act reads as follows:
"Divorce.
(1) Any marriage solemnized, whether before or after the commencement of this
Act, may, on a petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the other party-
(i) has after the solemnization of the marriage had voluntarily sexual
intercourse with any person other than his or her spouse."

13.     A petition under Section 13(1(i) therefore involves an allegation of
voluntary sexual intercourse by the spouse with a
3rd party.      The amendment does not disqualify the Rule in specific terms.  In
other words the amendment does not have any bearing upon the enforcement of the
Rule, thus it continues to be in force.  Definitely by virtue of the amendment,
the provision was liberalized as it only enjoins now that if one of the spouses
had voluntary sexual intercourse with any person other than his or her spouse,
that is a ground for dissolving the marriage between the spouses by a decree of
divorce.  This leads to consider what is meant by adultery in the present
context.
14.     The first part of Section 497 of IPC defines what is meant by adultery. It
contemplates "whoever has sexual intercourse with a person who is and whom he  
knows or has reason to believe to be the wife of another man, without the
consent or connivance of that man, such sexual intercourse not amount to the
offence of rape, is guilty of the offence of adultery".  This provision makes it
very clear that even a single incident of sexual intercourse with a person who
is and whom he knows or has reason to believe to be the wife of another person,
without the consent or connivance of that other person, amounts to adultery
which comes within the ambit of Section 13(1(i) of the Act in the context of
proceeding against the wife for divorce.  Thereby there is no need of one of the
spouses living in adultery continuously to attract Section 13(1)(i) of the Act.
15.     In the context of adding the alleged adulterer as a party in the divorce
O.P., what is required to be considered is as to whether any alleged finding of
adultery would adversely affect the interest of the adulterer by reason of which
an opportunity should be provided to him to defend himself to disprove the claim
of adultery applying the concept of the principles of natural justice.
This analogy is to be applied irrespective of enacting a Rule of Law for adding
him as a party to the divorce proceedings.  As a matter of fact his presence in
the proceedings helps better to effectively and completely adjudicate the
controversy and also safeguard his interest.
16.     In ARUN KUMAR AGARWAL v. RADHA ARUN 4, a Division Bench of Karnataka High        
Court observed similarly under similar circumstances as follows:
"Where such adulterer is named in the petition and evidence is let in to show
that the spouse had intercourse with such person, the Court will have to record
a finding that the spouse had a voluntary sexual intercourse with such named
person. There is no
gain-saying that such a finding/decision will adversely affect the reputation of
the person who is alleged to have committed the adulterous act.  Public interest
and principles of natural justice require that the person concerned should have
an opportunity to defend his reputation before such a finding is recorded.  It
is precisely for this reason that Rules framed by several High Courts
(Allahabad, Andhra Pradesh, Mumbai, Delhi, Gujarat, Himachal Pradesh, Kerala, 
Chennai, Orissa, Patna, Punjab and Rajasthan) specifically require that the
alleged adulterer should be impleaded as a co-respondent in a petition under
S.13(1)(i) of Hindu Marriage Act, even though no relief may be claimed against
him.  We strongly commend amendment of the Hindu Marriage (Karnataka) Rules,  
1956, to introduce such a provision.  As observed by a Division Bench of
Calcutta High Court in Sikha Singh v. Dina Chakrabarty, AIR 1982 Cal 370, the
Rule requiring joinder of the adulterer as a co-respondent proceeds on a public
policy to prevent collusion and character assassination."

The Karnataka High Court also considered the relevant provisions of Civil
Procedure Code about adding necessary party in the proceedings, and observed:

(7).    BUT what if the Rules do not require the impleading of the alleged
adulterer as co-respondent, though named in the petition?  In the absence of any
Rule, we have to fall back upon Rules 3, 5 and 10(2) of Order 1, CPC.  Rule 3
provides that all persons against whom any right to relief in respect of or
arising out of the same act/s or transaction/s is alleged to exist, whether
jointly or severally or in the alternative, may be joined as defendants in a
suit.  Rule 5 makes it clear that it shall not be necessary that every defendant
shall be interested as to all the relief claimed in any suit against them.  Rule
10(2) inter alia provides that the Court may at any stage of the proceedings,
order that the name of any party improperly joined as defendant be struck out;
or order the addition of any person who ought to have been joined as defendant,
or whose presence before the Court may be necessary in order to enable the Court
effectively and completely to adjudicate upon and settle all the questions
involved in the suit.


(8).    A plaintiff or petitioner is bound to implead all those who are necessary
parties.  He is also entitled to or at liberty to implead in a suit all parties
who are proper parties.  Though these terms are not defined in the Code, it is
well-settled that persons who ought to have been joined, that is persons in
whose absence no effective decree at all can be passed are necessary parties.
In other words those whose presence is absolutely necessary for the grant of the
reliefs claimed in a suit are necessary parties.
On the other hand all person whose presence before the Court is necessary to
enable it to effectually and completely adjudicate upon and settle all questions
involved in the suit are proper parties.  In Anil Kumar Singh v. Shivnath
Mishra, (1995) 3 SCC 147: (1995 AIR SCW 1782), the Supreme Court stated that the
object of Order 1, Rule 10(2) CPC is to bring on record all persons who are
parties to the dispute relating to the subject matter so that the dispute may be
determined in their presence and at the same time without any protraction,
inconvenience, and to avoid multiplicity of proceedings.  The Supreme Court
further held (Para 9 of AIR) "a person may be added as a party defendant to the
suit though no relief may be claimed against him/her provided her/her presence
is necessary for a complete and final decision on the question involved in the
suit."


(10).   THERE can be no doubt that in a proceeding where the Court has to 
decide whether the spouse of the petitioner had voluntary sexual intercourse
with another person, by adding such person (alleged adulterer) as a Respondent,
the Court would be in a better position to effectually and completely adjudicate
upon the controversy.  Nor can it be said that in a proceeding under
S. 13(1)(i) of H.M. Act, when the spouse and alleged adulterer are impleaded as
respondents, the alleged adulterer is improperly joined as a Respondent.
Therefore the alleged adulterer will be a proper party to a proceeding under
S.13(1)(i) of H.M. Act.
The Family court and the learned single Judge merely concentrated on the fact no
relief was sought against the Second Respondent. They, therefore, considered
only whether the adulterer is a necessary party to a petition seeking divorce on
the ground of adultery, but completely ignored that the alleged adulterer is a
proper party.

We adopt these observations here being quite rational.  Eventually we are unable
to accept the findings of the Court below to the effect that there is no need to
add the adulterer as party to the proceedings, he being a necessary and proper
party to the proceedings.  We are unable to agree with the findings given in
GALI KONDAIAH's case (1 supra).  Ultimately the verdict of the Court below is to
be set aside which results in the dismissal of the plea of the petitioner to
dissolve the marriage by a decree of divorce without going into the merits of
the evidence adduced. 
18.     In the result, the Family Court Appeal is allowed setting aside the order
of Court below and also dismissing the plea of the petitioner to dissolve the
marriage by a decree of divorce.
No costs.
_________________  
ASHUTOSH MOHUNTA, J      

_____________________  
G. KRISHNA MOHAN REDDY, J      
Date:12-09-2012

The Apex Court, however, added a caveat that only in exceptional situation, the Courts can permit filing of written statements beyond the period of 90 days. P.K.Balasubramanyan, J, who was a party to the judgment in Kailash (1 supra), observed in R.N.Jadi & Bros. vs. Subhashchandra2 that the Court cannot show unduly liberal approach in its anxiety to do justice and exercise its discretion to permit a party to violate even the procedural law in a routine manner. These judgments fell for review in Mohammed Yusuf vs. Faij Mohammad and others3, wherein the Supreme Court set aside the order of the High Court by which the belated application of the defendant for filing written statement was allowed, after setting aside the orders of the trial Court and the District Court. The Supreme Court, on finding that the defendant was not diligent in filing written statement, opined that the High Court should not have allowed the Writ Petition filed by the defendant and permitted him to file written statement in the absence of proper reasons putforth by him justifying the delay.

The Hon'ble Sri Justice C.V.Nagarjuna Reddy

Civil Revision Petition No.1517 of 2012

13-09-2012

Pillala Chennakesavulu

Pillala Reddikumar and another

^Counsel for the petitioner: Sri K.Venkat Rao

!Counsel for the respondents:   Sri C.Sumon

<Gist:

>Head Note:

?Cases referred:
1. (2005) 4 SCC 480
2. (2007) 6 SCC 420
3. (2009) 3 SCC 513

Order:
        This Civil Revision Petition is filed against Order, dated
15-09-2011, in IA.No.93 of 2011 in OS.No.18 of 2007, on the file of the Court of
the learned Senior Civil Judge, Kadiri.
I have heard Mr.K.Venkat Rao, learned Counsel for the petitioner, and
Mr.C.Sumon, learned Counsel for the respondents.
The respondents have filed the abovementioned suit for partition and separate
possession of the suit schedule property.  The petitioner herein is defendant
No.2, his father is defendant No.1 and his mother is defendant No.3 in the said
suit.  As the defendants did not file written statement, they were set ex parte.
IA.No.315 of 2009 was filed on behalf of all the defendants including the
petitioner herein for setting aside the ex parte order.  The said IA was allowed
by the lower Court permitting all the defendants to file a written statement.
The parents of the petitioner i.e., defendants 1 and 3 have filed separate
written statements in December, 2007.  However, no written statement was filed
by the petitioner.  On 22-10-2010, issues were framed and the case was posted to
22-11-2010 for trial.  After filing the affidavits in lieu of chief-examination
by the plaintiff witnesses, when the case was coming up for cross-examination of
PW.1, the petitioner filed IA.No.93 of 2011 for permission to file written
statement.  This application was dismissed by the lower Court by the Order under
revision.
At the hearing, the learned Counsel for the petitioner submitted that as his
client was seriously ill, he could not file written statement when his parents
have filed separate written statements in the year 2007 and that even though a
written statement was prepared on behalf of the petitioner on 22-09-2010 itself,
by inadvertence, the same could not be filed.
The lower Court held that the reason putforth by the petitioner that he was
seriously ill was not supported by any medical evidence and that his request for
permission to file a written statement at a time when the case was posted for
cross-examination of PW.1 is highly belated and not acceptable.
Along with this Civil Revision Petition, the petitioner has filed some of the
documents purported to be the medical certificates, a perusal of which would
show that they pertain to the year 2007.  Even today, the learned Counsel for
the petitioner has placed before the Court some additional documents, which
reveal that they also pertain to the year 2007.  No medical certificates for the
subsequent period have been produced by the petitioner even now before this
Court.  Even if the medical certificates on which the petitioner is seeking to
place reliance are taken into consideration, on their face value, they only show
that he was ill in the year 2007.  As pointed out by the lower Court, if the
petitioner was really ill during the relevant period nothing could have
prevented him from filing documentary evidence in support of his illness.
Coming to the plea of the petitioner that the written statement was prepared as
far back as 22-09-2010 and that inadvertently, the same could not be filed, in
my opinion, if this plea was correct nothing could have prevented him from
filing the same in the Court atleast on 22-10-2010, when the lower Court has
framed issues and adjourned the case to 22-11-2010.
In order to prevent avoidable delays, the Parliament has amended the provisions
of Order VIII Rule 1 of the Code of Civil Procedure, 1908 (for short 'the CPC'),
by Act 22 of 2002 with effect from 01-07-2002.  As per the amended provision,
the defendant shall, within 30 days from the date of service of summons, present
the written statement of his defence.  The proviso thereto, however, gives
discretion to the Court to extend the time for a period not later than 90 days
from the date of service of summons, if it is satisfied with the reasons
assigned by the defendant for not filing the written statement within 30 days .
Even though Order VIII Rule 1 of the CPC, the abovementioned provision is
couched in mandatory terms, in Kailash vs.  Nanhku1, the Supreme Court held that
that said provision is directory in nature as, in cases where the defendants are
prevented from filing written statements for genuine reasons, it will cause
extreme hardship to them if they are not permitted to file written statements
within the stipulated time.  The Apex Court, however, added a caveat that only
in exceptional situation, the Courts can permit filing of written statements
beyond the period of 90 days.  P.K.Balasubramanyan, J, who was a party to the
judgment in Kailash (1 supra), observed in R.N.Jadi & Bros.  vs.
Subhashchandra2 that the Court cannot show unduly liberal approach in its
anxiety to do justice and exercise its discretion to permit a party to violate
even the procedural law in a routine manner.  These judgments fell for review in
Mohammed Yusuf vs.  Faij Mohammad and others3, wherein the Supreme Court set     
aside the order of the High Court by which the belated application of the
defendant for filing written statement was allowed, after setting aside the
orders of the trial Court and the District Court.  The Supreme Court, on finding
that the defendant was not diligent in filing written statement, opined that the
High Court should not have allowed the Writ Petition filed by the defendant and
permitted him to file written statement in the absence of proper reasons
putforth by him justifying the delay.
Applying the above settled law to the facts of this case, I am of the opinion
that the petitioner failed to show any diligence whatsoever in filing written
statement for a period of more than 3 years even though an opportunity was
presented to him by the lower Court in the year 2007 itself by setting aside the
ex parte order.  Interestingly, all the defendants including the petitioner
appear to be represented by a common lawyer.  Therefore, the petitioner cannot
have any excuse for not filing a written statement when his parents have filed
separate written statements in the year 2007 itself.
On the analysis as above, I do not find any jurisdictional error in the order of
the lower Court in dismissing the petitioner's application for permitting him to
file written statement after commencement of trial.
The Civil Revision Petition is, accordingly, dismissed.
As a sequel, interim order, dated 18-04-2012, is vacated and  CRPMP.No.2028 of
2012 is disposed of.
                _________________________  
(C.V.Nagarjuna Reddy, J)
Date: 13-09-2012