SRI A S SWAMY vs DYAVARASE GOWDA
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:60595
RP No. 114 of 2026
CNR: KAHC010174422026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 30 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE JAYANT BANERJI
REVIEW PETITION NO. 114 OF 2026
BETWEEN:
SRI A.S.SWAMY
S/O L.SHIVANNA,
AGED ABOUT 64 YEARS,
R/AT: ABBUR VILLAGE,
KASABA HOBLI,
CHANNAPATNA TALUK-571 501,
RAMANAGAR DISTRICT.
…PETITIONER
(BY SRI.MAHESH.A.S., ADVOCATE)
AND:
DYAVARASE GOWDA
S/O DYAVE GOWDA,
MAJOR
R/AT: ABBUR VILLAGE,
KASABA HOBLI,
CHANNAPATNA TALUK-571 501,
RAMANAGARA DISTRICT
…RESPONDENT
(RESPONDENT SERVED UNREPRESENTED)
THIS REVIEW PETITION IS FILED UNDER SECTION 114 READ
WITH ORDER 47 RULE 1 OF CIVIL PROCEDURE CODE 1908, PRAYING
TO REVIEW PETITION BY WAY OF SETTING ASIDE THE ORDER
DATED 21.02.2026 PASSED IN WRIT PETITION BY WAY OF SETTING
ASIDE THE ORDER DATED 21.02.2026 PASSED IN WRIT PETITION
NO.5845/2026 (GM-CPC), IN THE INTEREST OF JUSTICE AND
EQUITY.
Digitally
signed by K G
RENUKAMBA
Location:
High Court of
Karnataka
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HC-KAR
NC: 2026:KHC:60595
RP No. 114 of 2026
CNR: KAHC010174422026
THIS REVIEW PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI
ORAL ORDER
T he respondent has been served, but he is remained
unrepresented.
2. This review petition is filed seeking review of the
order dated 21.02.2026 passed in Writ Petition No. 5845 of
2026. By means of the said order, this Court had directed, in
view of the 2025 Karnataka Amendment brought about in
Order VIII Rule 1 CPC that forfeits the right of the defendant to
file a written statement after 120 days, that the same has to be
strictly implemented as the terms therein are mandatory in
nature. Accordingly, the petition was dismissed thereby
upholding the order dated 23.01.2026 passed in OS No.
294/2025 on IA No.4 on the file of the Additional Civil Judge
and JMFC, Channapatna.
3. The counsel for the Review Petitioner has referred
to a judgment dated 28.07.2026 passed by the learned Single
Judge of this Court in Writ Petition No. 8032/2026 connected
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HC-KAR
NC: 2026:KHC:60595
RP No. 114 of 2026
CNR: KAHC010174422026
with Writ Petition No. 9372/2026. After considering the
provisions of the Karnataka Amendment, 2025 made in Order
VIII Rule 1 CPC, this Court has observed in that case as
follows:
" xxxx xxxx xxxx xxxx
159. Consequently, this Court holds that the
expression “the defendant shall forfeit the right”
and “the Court shall not allow the written
statement to be taken on record” cannot be
understood as creating an inflexible and absolute
prohibition applicable irrespective of facts and
circumstances. The said expressions shall instead
be construed to mean that ordinarily the Trial Court
shall not receive the written statement after expiry
of one hundred and twenty days. Departure from
the rule shall remain an exception.
XX. Parameters Governing Exercise of Judicial
Discretion
160. Having read down the provision, it becomes
necessary to indicate the parameters governing
exercise of discretion. Extension beyond one
hundred and twenty days shall never be granted
routinely. Mere negligence, inadvertence, oversight
or administrative convenience shall not constitute
sufficient cause. The defendant must establish
circumstances which are genuinely exceptional and
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NC: 2026:KHC:60595
RP No. 114 of 2026
CNR: KAHC010174422026
beyond his control. Illustratively prolonged illness;
natural calamities; delay in obtaining indispensable
public documents; circumstances rendering
appearance impossible despite due diligence; or
other causes of comparable gravity. The burden
shall lie entirely upon the defendant. The Trial
Court shall record detailed reasons.
161. Appropriate and realistic costs shall ordinarily
be imposed. Repeated adjournments shall not be
granted. The discretion shall be exercised only
where refusal would result in grave failure of
justice. The Trial Court must also consider whether
the defendant has acted bona fide and with due
diligence throughout the proceedings. Thus, while
the legislative mandate prescribing one hundred
and twenty days shall ordinarily govern all civil
suits, the constitutional obligation of Courts to
prevent miscarriage of justice remains preserved in
exceptionally rare cases. Such interpretation, in the
considered opinion of this Court, simultaneously
advances the object of speedy disposal and the
constitutional guarantee of fair adjudication. The
doctrine of reading down thus enables this Court to
preserve the validity of the Amendment Act while
ensuring that the salutary principles declared by
the Hon’ble Supreme Court in Kailash(supra),
Salem Advocate Bar Association(supra), R.N. Jadi,
Desh Raj(supra), Shoraj Singh(supra) and Bharat
Kalra(supra) continue to guide the exercise of
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HC-KAR
NC: 2026:KHC:60595
RP No. 114 of 2026
CNR: KAHC010174422026
judicial discretion in the rarest of deserving cases.
The operative directions shall accordingly follow.
XXI. Directions to the Trial Courts
162. In order to ensure uniform implementation
throughout the State, the following directions are
issued:
(i) Every Trial Court shall endeavour to ensure
strict adherence to the legislative timeline
prescribed under amended third proviso to Order V
Rule 1 and third proviso to Rule 1 of Order VIII.
(ii) Applications seeking acceptance of written
statements beyond one hundred and twenty days
shall be entertained only in exceptional
circumstances.
(iii) The Trial Court shall record detailed reasons
demonstrating why the case falls within the
exceptional category.
(iv) The Trial Court shall consider whether the
defendant has acted bona fide, diligently and
without intention to protract the proceedings.
(v) Realistic and deterrent costs shall ordinarily
accompany every order extending time.
(vi) The discretion recognised by this judgment
shall not be exercised mechanically or routinely so
as to dilute the legislative object underlying the
Amendment Act.
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RP No. 114 of 2026
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(vii) The Trial Court shall remain conscious that the
power preserved by this judgment is an equitable
jurisdiction intended only to prevent grave injustice
and not to encourage procedural indiscipline."
4. Paragragh-176 can also be noted with benefit,
which reads as follows:
176. To ensure uniform implementation of the
Amendment Act throughout the State, it is clarified
that the statutory period of one hundred and
twenty days shall ordinarily be adhered to in every
suit. Any departure therefrom shall be permissible
only in exceptional and extraordinary
circumstances beyond the control of the defendant,
upon proof of due diligence, for reasons to be
recorded in writing and ordinarily on payment of
realistic costs. Mere negligence, inaction, oversight
or routine administrative delay shall not constitute
sufficient cause. The discretion preserved by this
judgment is intended solely to prevent manifest
injustice and shall be exercised sparingly,
cautiously and only in the rarest of deserving
cases, without diluting the legislative mandate of
expeditious disposal.
5. In view of the aforesaid, while allowing this review
petition, and setting aside the order dated 21.02.2026 passed
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RP No. 114 of 2026
CNR: KAHC010174422026
in W.P.No.5845/2026, this Court deems fit to remand the
matter to the trial Court to take a fresh decision on the
aforesaid IA No.4 filed in the OS No.294/2025 after taking into
account the guidelines and directions of this Court as noted
above.
6. It is made clear that the directions aforesaid shall
not be construed as expressing any opinion on the merit of the
IA No.4. The trial Court is enjoined to consider the matter
afresh and independently in terms of the guidelines in the
aforesaid Writ Petition No.8032/2026 connected with Writ
Petition No.9372/2026.
8. The original records shall be transmitted to the
concerned trial Court, forthwith.
Sd/-
(JAYANT BANERJI)
JUDGE
KGR
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