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2001 DIGILAW 884 (KAR)

Gudadeshappa Urf Guddappa v. Deputy Commissioner

2001-12-05

D.V.SHYLENDRA KUMAR, M.F.SALDANHA

body2001
JUDGMENT M.F. Saldanha, J.—We have heard the appellant's learned Advocate and the learned Advocate for the contesting Respondent as also the learned Government Advocate on merits. We refrain from either recording the heads of arguments or findings thereon for only one reason that the order passed by the learned Single Judge in this case totally bypasses the merits of the case, the facts and the law and consequently, it is an order that is hopelessly unsustainable and will have to be set aside. There are certain observations in the order which perhaps were uncalled for. In any event, since it is not a decision on merits that order is set aside. 2. Prior to this, the learned Advocates advanced a strong plea that this has been a long litigation, that the parties are aged, that they can hardly afford further litigation and expenses from every point of view and consequently even if the learned Single Judge did not hear the case on merits and decide it that the appeal Court should do so. 3. On first consideration, there appear to be no objection to this procedure but there is a reason why we have declined the request of the learned Advocates. Under the scheme of the law a writ petition of this type is required to be decided in the first instance by the learned Single Judge and it presupposes the fact that the parties have got to be served and represented, they have got to be heard and a decision on merits is required to be given. In this case the principal grievance of the parties is that the copy of proceedings were not served and secondly, that the appellant was not given any hearing before the writ petition was decided. This is not a mere formality because we have made it very clear in the course of the hearing that where these requirements are bypassed and where there is no decision on merits in the first instance that it would be inappropriate and incorrect for the appeal Court to decide the case on merits in the first instance. This is not a mere formality because we have made it very clear in the course of the hearing that where these requirements are bypassed and where there is no decision on merits in the first instance that it would be inappropriate and incorrect for the appeal Court to decide the case on merits in the first instance. The obvious reason for this is because though the decisions are invariably given by a Court in good faith there is always an aggrieved party and if the appeal Court were to decide the case in the first instance then effectively the right of appeal of the opposite party or the one who has been unsuccessful is virtually frustrated. This is against the interests of the appellant and against the scheme of the law and it is only for this reason that we have declined to hear the case on merits. 4. Having regard to the aforesaid position without making any observations with regard to the merits of the case we set aside the order passed by the learned Single Judge. We remand the case to the learned Single Judge for a fresh decision. Since this is an old litigation, the Office is directed to place the writ petition for orders before the learned Single Judge concerned on 11.1.2002. The writ appeal succeeds to this extent and stands disposed off. No order as to costs.