IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 30140 OF 2017(GM-CPC) BETWEEN:
SRI. MUNIYAPPA, S/O LATE AJJAPPA, AGED ABOUT 76 YEARS, RESIDENT OF CHAMBAY VILLAGE, TEKAL HOBLI, MALUR TALUK, KOLAR DISTRICT – 563 137.SSS (BY SRI. RAM BHAT K, ADVOCATE) AND:
1. SMT. PILLAMMA, W/O BODEPPA, AGED ABOUT 70 YEARS, 2. PILLAPPA @ MARIYAPPA, S/O BODEPPA, AGED ABOUT 44 YEARS, 3. SRINIVASA, S/O BODEPPA, AGED ABOUT 40 YEARS, 4. MUNIRAJU, S/O BODEPPA, AGED ABOUT 34 YEARS, ALL ARE RESIDING AT CHAMBA VILLAGE, TEKAL HOBLI, MALUK TALUK, KOLAR DISTRICT – 563 137.
... PETITIONER ... RESPONDENTS (BY SRI. VIGHNESHWARA S SHASTRI, ADVOCATE FOR R1-R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE/ QUASH THE IMPUGNED ORDER DATED 07.06.2017 ON I.A.NO.4 FILED UNDER SEC. 151 OF CPC IN R.A.NO.72/2011 AS PER ANNEX-A AND CONSEQUENTLY DIRECT THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT KOLAR TO DISPOSE OF THE APPLICATION DATED 06.06.2017 VIDE ANNEX-F ON MERITS AFTER GIVING AN OPPORTUNITY TO THE RESPONDENTS.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the appellant in appeal in R.A. No.72/2011 is knocking at the doors of writ court for assailing the order dated 07.06.2017, a copy whereof is at Annexure-A, whereby the learned Prl. District Judge, Kolar having rejected his application filed u/s.151 of CPC, 1908 refused to restore the said appeal that was dismissed as withdrawn, to the Board for consideration on merits. After service of notice, the respondents having entered appearance through their counsel, resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this court is of the considered opinion that, reprieve needs to be granted to the petitioner for the following reasons:
(a) petitioner’s declaration suit in O.S.No.223/2011 (old O.S.No.269/2007) having been dismissed by the learned trial Judge on 17.06.2011, an appeal in R.A.No.72/2011 was filed by him challenging the same;
however, in terms of the Memo dated 12.12.2011, a copy whereof is at Annexure-D, the said appeal came to be dismissed as withdrawn on the ground that the lis was settled out of Court; the text of the Memo reads as under:
“MEMO The appellants in the above case pray that this Hon’ble Court may be pleased to dismiss the appeal as the matter is settled out of the court.”
However, the said settlement not having not attained fruition the petitioner had moved the subject application which is dismissed; though the impugned order appears to be in accordance with law, the same is bereft of justice;
(b) the reasoning of the Court below that after the appeal is dismissed as withdrawn on the ground of amicable settlement, the same cannot be restored to the Board, in any circumstances appears to be too farfetched a view; in the circumstances that resulted into filing of the subject application, the maxim ex debito justiciae becomes invocable and therefore the Lower Appellate Court ought to have favoured the request for restoration of the appeal; this having not been done, there is an error apparent on the face of record, warranting indulgence of Writ Court; and (c) the version of the appellant that there was some amicable settlement and therefore the appeal was withdrawn finds support by the conduct of the respondents even before this Court inasmuch as on 06.11.2019 after hearing the parties and their counsel, this Court had recorded their stand as under:
“All the parties present before the Court after interaction, agree that a compromise has been worked out settling the lis in question and that they need some time for formalizing the draft of compromise petition.
It is submitted at the Bar that out of the land, totally admeasuring 81 Guntas, the petitioner shall get 16 Guntas and the rest shall be retained by respondent side; however, the earmarking of these portions is yet to be done.
To facilitate formalizing of compromise, the matter is adjourned to 11.11.2019 as suggested by both the counsel and the parties. On the date of hearing, all the parties shall be present before the Court.”
now that the respondents are resiling unjustifiably their stand, the justice of the case warrants that petitioner’s appeal in R.A.No.72/2011 be considered on merits and in accordance with law, also keeping in view the order of this Court reproduced above.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; petitioner’s subject application having been favoured, his appeal in R.A.No.72/2011 is restored to the Board for consideration afresh within a period of three months.
All contentions of the parties are kept open.
The parties through their counsel are put on notice to appear before the Lower Appellate Court on 04.12.2019 and to take further instructions from the Presiding Officer thereof.
Sd/- JUDGE Snb/