IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.NO.1640/2008(PAR) BETWEEN :
SRI AMEER HUSSAIN S/O ABDUL RASHID AGED ABOUT 57 YEARS R/O THATHKOLA ROAD MUDIGERE TOWN & TALUK-581 377. …APPELLANT (BY SRI A. SANATH KUMAR, ADVOCATE BY KEDILAYA ASSOCIATES- ABSENT) AND 1. M D FIDA HUSSAIN, S/O ABDUL RASHID, AGED ABOUT 56 YEARS, ATTENDER, TELEPHONE EXCHANGE, BHADRAVATHI TOWN AND POST, BHADRAVATHI, DISTRICT :SHIMOGA – 577 201.
2. M.D. ZIA HUSSAIN S/O ABDUL RASHID, AGED ABOUT 60 YEARS, POSTMAN, KUDREMUKHA POST, MUDIGERE TALUK – 581 371.
3. KHALIMULLA, S/O ABDUL RASHID, AGED ABOUT 53 YEARS, R/O THATHKOLA ROAD, MUDIGERE TOWN AND TALUK -581377.
4. SMT MEHARUNNISA W/O ABDUL JALEEL, AGED ABOUT 67 YEARS, R/O K.M.ROAD, MUDIGERE TOWN, MUDIGERE TALUK – 581377 5. SMT. KURTHUNNISA W/O EAROOQ ISMAIL, AGED ABOUT 54 YEARS, R/O HIREGONIKERE POST, HONNALI TALUK, SHIMOGA DISTRICT -577 201.
6. JAHARA JABEENA, W/O ABDUL RAHIMAN, AGED ABOUT 47 YEARS, HOUSE NO.26, 6TH TYPE, RIPS COLONY, SHAKTHINAGAR TOWN AND POST, RAICHUR DISTRICT – 584 101.
7. B V PRADEEP, S/O VENKATEGOWDA, R/O MUDIGERE TOWN AND POST, MUDIGERE TALUK -571 112. ... RESPONDENTS (VIDE ORDER DATED 11.08.2017, APPEAL DISMISSED AGAINST R1, VIDE ORDER DATED 21.03.2016, APPEAL ABATED AGAINST R2, R3 TO R7 ARE SERVED BUT REMAIN UNREPRESENTED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DTD 3.4.2008 PASSED IN R.A.NO.254/2004 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE, CHIKMAGALUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 4.12.2000 PASSED IN O.S.NO.89/1997 ON THE FILE OF THE PRL. CIVIL JUDGE, (JR.DN), MUDIGERE.
THIS RSA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT In this appeal, except respondent Nos.1 and 2 all other respondents, namely respondents 3 to 7 are served and they are unrepresented before this Court. Hence, it was posted before this Court on 19.2.2016 for taking fresh steps for issue of notice to respondent No.1 and also to bring the legal representatives of deceased respondent No.2 on record. On that day, two weeks time was granted to do the needful. It is seen that since steps were not taken within the stipulated time, by order dated 21.3.2016 this Court dismissed the appeal as against respondent No.2 as abated and granted a week’s time to take steps in respect of respondent No.1.
2. Thereafter, this matter is called on 24.6.2016 and 11.8.2017 for taking steps in respect of respondent No.1. However, on 11.8.2017 this Court had passed an order which is as under:
“The appellant’s counsel is absent. Inspite of granting sufficient time, needful has still not been done for almost one and a half years. It is apparent that the appellant is not interest in prosecuting this matter. Hence, the appeal is dismissed against respondent No.1”
3. With this, it is clearly seen that as on 11.8.2017 the appeal as against respondent No.1 is dismissed and as against respondent No.2 it is abated. Therefore, nothing survives for consideration in this appeal subsequent to 11.8.2017. However, the Registry has posted this matter before the Court on 8.9.2017 for admission.
4. In the meanwhile, the order sheet would indicate that there is a special order by the Hon’ble Chief Justice to post this appeal before the Court having roster and the said order is passed on 15.9.2017. This order is passed by the Hon’ble Chief Justice pursuant to an order passed by the very same Judge, who had dismissed the appeal as against respondent No.1 by order dated 11.8.2017 and the very same judge directed the Registry to secure necessary orders from the Hon’ble Chief Justice to post the appeal before the roster Bench by order dated 8.9.2017.
5. In this background, this matter was listed before this Bench on 4.10.2017, which was ordered to be listed on 6.10.2017. On 6.10.2017, finally a week’s time was granted to the counsel for the appellant for taking steps in respect of respondent No.1 as well as to seek the dismissal order passed as against him on 11.8.2017 recalled. The said order is not complied. Thereafter, on 3.9.2018 when this matter came up before the Court, the Coordinate Bench after observing that though the matter calls for dismissal, ordered the same to be listed on 6.9.2018 in the interest of justice. Again, on 6.9.2018 at the request of learned counsel for the appellant it was ordered to be listed on 17.9.2018. On 17.9.2018 though the appellant and his counsel were absent, further two weeks’ time was granted to the needful. Thereafter, this matter was listed before this Bench on 29.10.2018, on which day a week’s time was granted to file necessary application for service of notice to contesting respondent No.1, which is not complied. Thereafter, again this matter was posted before this Bench on 17.1.2019, on which day there was no representation on behalf of the appellant, hence, it was ordered to be listed to this day. This day also none appeared for the appellant. This clearly indicates that the appellant and his counsel have no interest in pursuing this matter. Further, by virtue of order dated 11.8.2017 the appeal as against contesting respondent No.1 is already dismissed and so far as respondent No.2 is concerned, it is abated. Though the other respondents are served, they have remained unrepresented.
6. In that view of the matter, this Court find that no justifiable grounds are made out to keep this appeal pending. Accordingly, the same is dismissed for non prosecution as against other respondents also besides the dismissal of appeal as against respondent No.1 and abatement against respondent No.2, as stated supra. Consequently, pending application in IA.I/2018 stands dismissed.
Sd/- JUDGE nd/-