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2013 DIGILAW 812 (KAR)

Bhavya v. Hanumappa Reddy

2013-07-18

A.S.BOPANNA

body2013
Judgment : 1. The petitioners are before this Court assailing the order dated 16.07.2010 passed in proceedings No.RA.01/2005-2006. The petitioners are also seeking for a writ of mandamus to respondent No.2 to hear and dispose of the proceedings after providing opportunity to the parties. 2. Heard the learned counsel for the parties and perused the petition papers. 3. Though several contentions have been urged on the merits relating to the right of the parties, since it is at the outset pointed out that the petitioners herein were not the original appellants before the respondent No.4 and that they have been denied the opportunity of coming on record and puttingforth their contentions, the matter requires to be considered to the said extent and thereafter come to a conclusion as to whether the order impugned at Annexure-T is justified or not. 4. The father of the petitioners S.V. Guruva Reddy had initiated the said proceedings by filing an appeal seeking for a direction to register the document which had been claimed in his favour. Originally the Registering Authority had refused registration of the said document dated 07.04.1999 holding that the document is not in respect of respondent No.2 herein. During the pendency of the proceedings before the respondent No.4, the said S.V. Guruva Reddy is stated to have died. Subsequent thereto, the petitioners being the daughters of late S.V. Guruva Reddy filed the applications in the said proceedings seeking to condone the delay, set aside the abatement and permit them to come on record as the legal representatives to prosecute the appeal. The applications had been taken up for consideration. 5. From the order sheet which has been produced at Annexure-R to the petition, the fact that the learned counsel for the petitioners had appeared and argued the said application is evident. The order sheet would further disclose that no orders have been made on the applications which had been filed for condonation of delay, setting aside abatement and leave to come on record as legal representatives. Notwithstanding the same, the respondent No.4 has thereafter considered the merits of the rival contentions and passed the impugned order rejecting the request of the appellants before it. 6. Notwithstanding the same, the respondent No.4 has thereafter considered the merits of the rival contentions and passed the impugned order rejecting the request of the appellants before it. 6. The learned counsel for the private respondents as well as the learned Government Advocate would seek to sustain the order of the respondent No.4 by contending that though no specific order has been made with regard to the said applications, the order would disclose that the respondent No.4 has taken into consideration the contentions putforth and has thereafter arrived at the conclusion on merits and therefore the order does not call for interference. 7. Having noticed the said contentions, what is also to be kept in view is that the said S.V. Guruva Reddy, the appellant had died and the fact that an application for setting aside abatement and condonation of delay was filed would disclose that the appeal in fact had abated. Therefore, unless specific orders are passed on the applications for condonation of delay and setting aside of the abatement, the appeal itself would not be available for consideration on merits. Therefore, without passing orders on the said applications, even if the respondent No.4 has considered the merits, the order would have to be considered as a non-est order in the absence of the interested parties and as against a dead person. 8. Furthermore, the contention of the learned counsel for the petitioners is also that from the very order sheet at Annexure-R, it would disclose that on 17.04.2010, the learned counsel for the petitioners had addressed arguments and the same also related to the said applications and the contentions touching upon the merits is only to indicate the right of the petitioners to come on record and urge their contentions. In that regard, it is also pointed out that in the ultimate order passed by the respondent No.4, the documents which have been relied upon are the documents which have been produced subsequent to the said date with regard to which the petitioners had not been provided opportunity. The validity of the said documents in any event should have been considered by the respondent No.4 after providing opportunity to the petitioners. 9. Furthermore, the order would disclose that the major portion has been referred with regard to the applications and the decisions cited in that regard has also been taken into consideration. The validity of the said documents in any event should have been considered by the respondent No.4 after providing opportunity to the petitioners. 9. Furthermore, the order would disclose that the major portion has been referred with regard to the applications and the decisions cited in that regard has also been taken into consideration. Therefore, keeping these aspects in view, considering that the order made on merits is without opportunity to the petitioners to putforth their contentions on merits after setting aside abatement and allowing them to come on record and also place any additional documents or evidence, the order passed by the respondent No.4 in the present form cannot be sustained. Accordingly, the order dated 16.07.2010 impugned at Annexure-T is set aside. The matter is remitted to the respondent No.4 to pass fresh orders on the applications filed by the petitioners seeking setting aside of abatement and leave to come on record. On passing orders on the applications, if the respondent No.4 is of the view that the abatement is to be set aside and leave should be granted to the petitioners to come on record, the respondent No.4 shall thereafter permit the parties to putforth their contentions on merits and come to a conclusion one way or the other in accordance with law. 10. In terms of the above direction, the petition stands disposed of.