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2017 DIGILAW 913 (KAR)

SHARANAMMA v. STATE OF KARNATAKA

2017-06-08

B.VEERAPPA

body2017
ORDER : B. Veerappa, J. The learned counsel for the petitioner submits that in the original appeal before Assistant Commissioner, respondent No.4 remained absent. Therefore, he has filed a memo before this Court for dispensation of notice to the 4th respondent in the present writ petition. The said submission is placed on record. Notice to respondent No.4 is dispensed at the risk of the petitioner. 2. The petitioner has filed the present writ petition against the endorsement dated 19.11.2016 issued by the 3rd respondent dismissing the application for restoration of the appeal, which was dismissed for default and also to direct the 3rd respondent to consider the application filed under Order 9, Rule 4 r/w Section 9, CPC. 3. It is the case of the petitioner that being aggrieved by the order passed by the Tahasildar dated 08.04.2012, she filed an appeal before the Assistant Commissioner under Section 136 (2) of the Karnataka Land Revenue Act, 1964. The Assistant Commissioner by an order dated 06.09.2016 dismissed the appeal for default. Therefore, the petitioner has filed an application for restoration of appeal under Order 9, Rule 4 r/w Section 9, CPC and also application under Section 5 of the Limitation Act to condone the delay. The Assistant Commissioner even without issuing notice to the respondents proceeded to dismiss the applications mainly on ground that the petitioner was continuos absent and the matter is of the year 2012-13. Hence, the present writ petition is filed. 4. I have heard the learned counsel for the parties to the lis. 5. Sri. B. Bhimashankar, learned counsel for the petitioner contended that the appeal filed by the petitioner came to be dismissed for default and therefore the petitioner has filed an application for restoration of the appeal along with the delay application. The Assistant Commissioner without issuing notice to the respondents has dismissed the application and the same is in utter violation of principles of natural justice. He further contended that the Assistant Commissioner has failed to notice that the rights of the parties are involved in respect of immovable properties bearing land in Sy.No.45 measuring 8 acres 22 guntas of Kurulagera village. The Assistant Commissioner ought to have decided the case on merits instead of dismissing the applications on technicality. Therefore, he sought to allow the present writ petition. 6. Per contra, Sri. The Assistant Commissioner ought to have decided the case on merits instead of dismissing the applications on technicality. Therefore, he sought to allow the present writ petition. 6. Per contra, Sri. Shivaputra, S. Udbalkar, learned HCGP for respondent Nos.1 to 3 sought to justify the impugned order and contended that the counsel for the petitioner was remained absent continuously, therefore, the Assistant Commissioner dismissed the appeal for default and subsequently rejected the applications for restoration and the same is in accordance with law. Therefore, he sought to dismiss the writ petition. 7. Having heard the learned counsel for the parties to the lis, it is an undisputed fact that the petitioner has filed an appeal before the Assistant Commissioner aggrieved by the order passed by the Tahasildar. If the learned counsel for the petitioner was absent and the appeal came to be dismissed for default, when the application filed for restoration of the appeal, the Assistant Commissioner ought to have allowed the application by imposing some costs. Dismissing the application as well as the appeal for default on technicality will affect the rights of the parties in respect of immovable properties and that is not the intention of the legislature while enacting on the provisions of Section 136(2) of the Karnataka Land Revenue Act 1964. 8. It is well settled law that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 9. Admittedly, in the present case the Assistant Commissioner has dismissed the application for restoration of the appeal, which came to be dismissed for default mainly on the ground that the learned counsel for the petitioner was continuously absent. Absolutely no reasons are assigned in the impugned endorsement dated 19.11.2016, the Assistant Commissioner ought to have allowed the application for restoration of the appeal by imposing some costs and ought to have decided the appeal on merits by taking consideration the rights of the parties are involved in respect of immovable properties to an extent of 8 acres 22 guntas. The same has not been done in the present case. Therefore, the impugned endorsement issued by the Assistant Commissioner cannot be sustained in law. 10. For the reasons stated above, the writ petition is allowed. The impugned endorsement dated 19.11.2016 issued by the 3rd respondent Assistant Commissioner is quashed. The application filed under Order 9, Rule 4 r/w Section 9 of CPC and application under Section 5 of the Limitation Act are allowed. The Appeal No.206/2012-13 is restored to the file of the Assistant Commissioner subject to payment cost of Rs. 2,000/- payable by the petitioner to respondent No.4 before the Assistant Commissioner. The Assistant Commissioner is directed to proceed with appeal after providing an opportunity to both the petitioner and respondent No.4 and pass orders on merits in accordance with law.