IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2017 BEFORE THE HON’BLE MR.JUSTICE A.S. BOPANNA WRIT PETITION NO. 39 OF 2017 (SC/ST) BETWEEN:
RATHNAMMA, W/O LATE SHIVALINGAIAH, AGED ABOUT 46 YEARS, OCCUPATION AGRICULTURE, R/AT VENKATAPURA VILLAGE, ALUDODDERE POST, KALLAMBELLA HOBLI, SIRA TALUK, TUMKUR DISTRICT – 572101 …PETITIONER (BY SRI. H. ASHOK KUMAR, ADVOCATE) AND:
1. SHIVAMMA, D/O LATE HANUMANTHAIAH, AGED ABOUT 31 YEARS, OCCUPATION HOUSE WIFE, R/AT KODITHIMMANAHALLI, KORA HOBLI, TUMKUR TALUK, TUMKUR DISTRICT – 572101 2. NARASAPPA, S/O PUTTAIAH, AGED ABOUT 66 YEARS, OCCUPATION AGRICULTURE, R/AT KODITHIMMANAHALLI, KORA HOBLI, TUMKUR TALUK, TUMKUR DISTRICT – 572101 3. THE ASSISTANT COMMISSIONER, TUMKUR SUB-DIVISION, TUMKUR, TUMKUR DISTRICT – 572101 4. THE DEPUTY COMMISSIONER, TUMKUR DISTRICT, TUMKUR - 572101 ... RESPONDENTS (BY SRI. DILDAR SHIRHALLI, HCGP FOR R-3 AND R-4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT FILED IN ANNEXURE-G DATED 09.12.2016 ISSUED BY THE RESPONDENT NO.4 ON THE FILE OF DEPUTY COMMISSIONER, TUMKUR DISTRICT, TUMKUR IN RA.PTCL/12/2011-12 AND ETC.,.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Learned Government Advocate to accept notice for respondent Nos.3 and 4 and file memo of appearance in four weeks.
2. Considering that the restoration petition as at Annexure-F has been rejected by the respondent No.4 even prior to issue of notice to respondent Nos.1 and 2 herein and on taking note of the nature in which the impugned endorsement dated 16.08.2014 is issued, need to notify the other respondents does not arise. The petitioner herein, claiming to be aggrieved by the order passed by the Assistant Commissioner, was before the respondent No.4 in an appeal bearing No.12/2011- 2012. The said appeal had been dismissed for non- compliance of the directions and for non-appearance. Essentially it was a dismissal for default.
3. The petitioner herein filed a miscellaneous application in No.11/2016-17 by invoking the provisions of Order 9 Rule 9 of Civil Procedure Code seeking restoration of the Appeal No.12/2011-12, which had been dismissed for default on 16.08.2014 and for consideration on merits.
4. The respondent No.4 has not considered the said petition on its merits so as to find out whether any justification is put forth for restoring the appeal and considering the same on its merits. On the other hand, the endorsement impugned herein would indicate that respondent No.4 has indicated that since the appeal has already been dismissed, the present petition cannot be entertained by construing it as another appeal filed by the petitioner.
5. The present petition filed by the Petitioner in miscellaneous application No.11/2016-17 is not in the nature of an appeal filed against the order of the Assistant Commissioner. On the other hand, the petitioner is seeking restoration of the appeal, which had been filed in No.12/2011-12 as it had been dismissed for default/non-prosecution. In such circumstances, the endorsement of the present nature would not be justified. However, it would be open for respondent No.4 to take into consideration the reasons put forth in the restoration petition in No.11/2016-17 so as to arrive at the conclusion on its merits as to whether restoration as sought should be accepted or not. To that extent, if a detailed order is passed in that regard and thereafter a decision is taken, the same would be justified even if it is either at the stage of issuing notice to the respondents therein or subsequent thereof.
7. In that view, the endorsement impugned dated 16.08.2014 at Annexure-E is quashed. The respondent No.4 may now take note of the petition in No.11/2016-17 and pass a considered order as to whether the same is maintainable or not. Such decision be taken by respondent No.4 on issuing notice to respondent Nos.1 and 2.
8. In terms of the above, the petition is disposed of.
SD/- JUDGE DR/MDS