IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT APPEAL NO. 1412/ 2019 (LA-RES) BETWEEN:
SRI K. LAKSHMINARAYANA S/O LATE K RAMAIAH SETTY AGED ABOUT 53 YEARS R/AT NO 276 9TH ‘A’ MAIN ROAD II BLOCK, JAYANAGAR BENGALURU - 560 011.
... APPELLANT (BY SRI SAINATH, ADVOCATE) AND:
1. SRI KRISHNAPPA S/O LATE HANUMAIAH AGED ABOUT 75 YEARS R/AT NO 186, GANGABHAVANI ROAD, KODIGEHALLI VILLAGE SAHAKARNAGAR POST, BENGALURU - 560 092.
2. THE STATE OF KARNATAKA REVENUE DEPARTMENT M.S.BUILDING BANGALORE - 560 001.
BY ITS PRINCIPAL SECRETARY 3. THE DEPUTY COMMISSIONER BANGALORE DISTRICT K.G. ROAD BANGALORE - 560 009.
4. THE SPECIAL LAND ACQUISITION OFFICER 3RD FLOOR, V.V. TOWER DR. AMBEDKAR ROAD BANGALORE - 560 001.
5. NATIONAL TECHNOLOGICAL INSTITUTIONS (NTI) HOUSING CO-OPERATIVE SOCIETY LTD.
G-5, PALACE ORCHARDS, APARTMENTS NO.51, 9TH MAIN 6TH CROSS, RMV EXTENSION BENGALURU - 560 090.
THROUGH ITS SECRETARY 6. SRI BALAJI M. C. S/O CHOWDA REDDY AGED ABOUT 50 YEARS RESIDING AT NO 14 B. N. REDDY COLONY BANJARA HILLS HYDRABAD – 500 034. AND ALSO AT NO 127, 3RD MAIN, 7TH CROSS RMV 2ND STAGE, DOLLARS COLONY BANGALORE - 560 094.
... RESPONDENTS (BY SRI H. S. PRASHANTH, ADVOCATE FOR R2 & R4) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 16/04/2019 OF THE LEARNED SINGLE JUDGE IN WP NO.19362/2016 [LA-RES] AS ERRONEOUS AND LEGALLY NOT TENABLE AND ETC., THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT The order dated 16th April 2019 is impugned in this appeal. Though the appeal is listed for dealing with interim applications, we have heard the learned counsel appearing for the appellant on merits with his consent.
2. The present appellant is the sixth respondent in the writ petition filed by the first respondent. The writ petition filed by the first respondent was dismissed by the order dated 1st March 2019 for non-prosecution. The impugned order has been passed on the interlocutory application taken out by the first respondent for restoration of the writ petition. The ground on which the restoration was sought by the first respondent is that the counsel earlier engaged by him had filed a memo seeking to retire from prosecuting the proceedings and though a Court notice was issued to him, the first respondent was unable to contact his previous counsel as he was suffering from viral fever and low back pain between 22nd February 2019 and 15th March 2019. On 12th March 2019, after recovering from illness, he contacted his previous counsel and it was learnt that the writ petition was dismissed on 1st March 2019. By the impugned order dated 16th April 2019, the learned Single Judge has restored the writ petition.
3. The submission of the learned counsel appearing for the appellant is that before the learned Single Judge, he had relied upon following four decisions of the Apex Court:
1. S.P. Chengalvaraya Naidu Vs. Jagannath (AIR 1994 SC 853) 2. Prestige Lights Ltd. Vs. State Bank of India (MANU/SC/3355/2007) 3. K.D. Sharma Vs. Steel Authority of India Ltd. (MANU/SC/3371/2008) 4. Meghmala and others Vs. G. Narasimha Reddy and others (MANU/SC/0608/2010) 4. He submitted that he pointed out to the learned Single Judge that while filing the writ petition, the first respondent has played a fraud upon the Court and as the first respondent has not come to the Court with clean hands, the petition should not be restored.
5. By the impugned order, while restoring the writ petition filed by the first respondent subject to payment of cost of Rs.10,000/-, the learned Single Judge observed that the allegations regarding fraud and misconduct of the first respondent will require detailed consideration in the writ petition and in fact, it is specifically observed that the interlocutory application filed seeking action under Section 340 of Code of Criminal Procedure, 1973 will remain pending. The learned Single Judge observed that the contentions raised regarding the conduct of the first respondent need not be gone into at the stage of consideration of restoration application.
6. The submission of the learned counsel appearing for the appellant is that in the light of the law laid down in the aforesaid Apex Court decisions, the learned Single Judge was under an obligation to consider the contentions raised by the appellant. He submits that considering the fraud played by the first respondent, his case should have been thrown out on the threshold.
7. We have given careful consideration to the submissions. The law laid down by the Apex Court in the well known case of S.P. Chengalvaraya Naidu (supra) and three other cases is well settled. However, the learned Single Judge was considering only a limited prayer for restoration of the writ petition which was dismissed for non-prosecution as the first respondent was absent. He was dealing only with question as to whether sufficient cause was made out for his absence on 1st March 2019. It is not the case of the appellant that any fraudulent and/or false statement was made by the first respondent in his application for restoration.
8. The impugned order makes it clear that the issue of conduct of the first respondent as alleged by the appellant is very much kept open. In fact if the case of the appellant is true, it was all the more necessary for the learned Single Judge to have restored the writ petition so that the issue of conduct of the first respondent can be gone into. If he is found guilty of objectionable conduct, the matter can be taken to its logical end.
9. As the issue of alleged fraudulent conduct on the part of the first respondent has been kept open which will be considered when the learned Single Judge considers the writ petition on merits, no interference is called for in the impugned order which is discretionary in nature.
10. At this stage, learned counsel appearing for the appellant submits that the applications made by the appellant under Section 151 of Code of Civil Procedure, 1908 and Section 340 of Code of Criminal Procedure, 1973 were pending in the writ petition when the writ petition was dismissed for non-prosecution by the learned Single Judge. If that be so, as a consequence of the restoration of the writ petition even those applications which were pending on the date of dismissal of the writ petition will stand restored which will be considered by the learned Single Judge in accordance with law.
Accordingly, the writ appeal is disposed of. The pending applications stand disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE SN