IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NO.1654 OF 2019(KLRA) Between:
Smt. Christine Periera, Aged about 82 years, W/o. Late Anthony Periera, Agriculturist, R/at Cholpady, Karkala Kasba Village, Udupi Taluk, Udupi District-547 104. ... Appellant (By Sri K. Prasanna Shetty, Advocate) And:
1. The State of Karnataka, Rep. by its Secretary to Government, Department of Revenue, Vidhana Soudha, Bengaluru-560 001.
2. The Land Tribunal, Karkala Taluk, Presently Udupi District, Rep. its Chairman, 3. Smt. Lilly Lobo, Dead by her LRs.
3(a) Smt. Leena Violete Lobo, Aged about 58 years, D/o Late Lilly Lobo.
3(b) Smt. Roopa Bhartha Lobo, Aged about 51 years, D/o Late Lilly Lobo.
Respondents No.2(a) & (2b) are Residing at Lobo Lands, Cholpady, Karkala Taluk, Udupi District. ... Respondents (By Sri. Vikram Huilgol, HCGP for R1 & R2) This writ appeal is filed under Section 4 of the Karnataka High Court Act, 1961, praying to set aside the order dated:05.02.2019 passed by the learned single Judge in WP.No.28576/1997 (KLRA) and allow this appeal.
This appeal coming on for orders this day, Chief Justice delivered the following:
JUDGMENT Heard the learned counsel appearing for the appellant. By the impugned order, the learned Single Judge rejected the interlocutory applications made by the appellant (writ petitioner) for condonation of delay of more than 15 years and 8 months in filing the application for bringing on record the legal representatives of the deceased respondent No.3.
2. The third respondent died on 27th February 2008.
The writ petition was filed by the appellant in the year 1997 for challenging the order of the Land Tribunal in which the third respondent was the contesting respondent. On 9th January 2004, when the writ petition filed by the appellant was placed before the learned Single Judge, he noticed that the notice issued to the third respondent in the writ petition has been returned on 25th January 2002 with the postal remark “expired”. Therefore, the writ petition was dismissed as abated. As noted earlier, the third respondent had died on 27th February 2008.
3. After a period of 14 years and 6 months from the date on which the writ petition was dismissed as abated, applications were filed by the appellant for condonation of delay, for setting aside the abatement and for bringing on record the legal representatives of the deceased third respondent. By the impugned order, the said applications have been rejected by the learned Single Judge on the ground that there was inordinate delay of more than 15 years. The learned Single Judge also noted that in the meanwhile, the original record of the proceedings has been destroyed and no document is available to consider the correctness or otherwise of the case made out by the appellant.
4. The learned counsel appearing for the appellant submitted that in the applications filed by the appellant, a case was made out that the appellant was not even aware about the dismissal of the writ petition by the order dated 9th January 2004. He submitted that the appellant is an old and sick lady, suffering from cancer. He submitted that the appellant became aware of the dismissal of the petition when she got RTC extracts in respect of the property subject matter of the writ petition. He submitted that the proposed legal representatives of the third respondent may have no objection for bringing them on record.
5. We have considered the submissions. In the writ petition filed in the year 1997, third respondent died on 27th February 2008. Writ petition was dismissed as abated by order dated 9th January 2004 on the basis of the postal remark on the notice issued to the third respondent. The notice was returned unserved on 25th January 2002. For bringing on record the legal representatives of the third respondent who is died on 27th February 2008, as stated above, applications were filed by the present appellant on 26th October 2018. Apart from the fact that the applications were filed more than 20 years after the date of death of the third respondent, the applications were moved after a lapse of 14 years and 6 months from the date on which the writ petition was dismissed as abated. Perusal of the applications made therein by the appellant show that the averment made are very vague. No particulars of the sickness of the appellant have been set out in the application. Though the appellant claims that she became aware about the dismissal of the writ petition as abated only after she got RTC extract, the date on which she got the RTC extract is not specifically set out in the application. After considering these facts and after considering the fact that even the original records have been destroyed, the learned Single Judge has declined to condone the delay of more than 20 years.
6. Hence, we find no merit in the appeal and the same is accordingly dismissed.
7. All pending applications do not survive for consideration and the same are disposed of.
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Sd/- CHIEF JUSTICE Sd/- JUDGE Cm/-