IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA REGULAR SECOND APPEAL No.1596/2006 (DEC/INJ.) BETWEEN:
1. SRI S.THYAGARAJU, AGED ABOUT 53 YEARS, S/O SRI SUNDARARAJ NAIDU, DOOR No.3600, HASANAMBA TEMPLE ROAD, HASSAN - 573 201.
2. SMT.T.MANJULA, AGED ABOUT MAJOR, W/O SRI S.THYAGARAJU, DOOR No.3600, HASANAMBA TEMPLE ROAD, HASSAN -573 201. …APPELLANTS (APPEAL ABATED AGAINST APPELLANT No.1 VIDE ORDER DATED 23.10.18, SMT. T. MANJULA, APPELLANT No.2 (PARTY-IN-PERSON) – ABSENT) AND :
SMT.VASUNDARA V.P. RAJ AGED ABOUT 50 YEARS, W/O WINSON PAUL RAJ, CHAMUNDI HATCHERIES, KUVEMPUNAGAR, HASSAN – 573 201. …RESPONDENT (BY SRI S.P.SHANKAR, SENIOR COUNSEL FOR SMT.MAMATA KULKARNI, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 06.01.2006 PASSED IN R.A.No.473/2005 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE AND PRESIDING OFFICER, FTC-III, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.01.2004 PASSED IN O.S.No.458/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) AND JMFC II COURT, HASSAN.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Defendant Nos.1 and 2 in O.S. No.458/1997 on the file of Prl. Civil Judge (Jr. Dn.) and JMFC–II, Hassan, have come up in this second appeal.
2. Admittedly, the suit in O.S. No.458/1997 was filed by the respondent herein for the relief of declaration and permanent injunction with reference to the suit schedule property, which is a road as shown in the sketch annexed to the plaint, commencing from Hassan towards Belur and passing through Sy. Nos.119, 118 and 117 belonging to the defendants. In the schedule to the plaint, it is stated that the existing road was shown in the red ink in the sketch annexed to the plaint.
3. The trial Court by its judgment and decree dated 19.01.2004, decreed the suit of the plaintiff with cost. The said judgment and decree was the subject matter of appeal in R.A No.473/2005 preferred by defendant Nos.1 and 2 before the Court of Additional Sessions Judge and Presiding Officer, Fast Track Court – III, Hassan. The lower appellate Court, by its judgment and decree dated 06.01.2006, dismissed the said appeal with costs on merits. As against the concurrent finding rendered by both the Courts below, this second appeal was filed on 03.06.2006 with delay of 03 days. In that behalf, learned counsel for appellants filed application in I.A. No.1/2006 seeking condonation of the said delay. The said delay in filing the appeal was condoned by coordinate Bench of this Court by its order dated 27.06.2008.
4. This Appeal was admitted on 26.09.2008 to consider the substantial question of law as framed by coordinate Bench of this Court on that day. Thereafter, this matter is at the stage of final hearing.
5. In this proceedings, appellant No.1 is said to have died on 04.11.2015. Appellant No.2 is the wife of deceased appellant No.1. Since steps were not taken to bring the other legal representatives of deceased appellant No.1 on record even after lapse of three years from the date of his death, the appeal filed by appellant No.1 stood abated as could be seen from the order passed by coordinate Bench of this Court on 23.10.2018.
6. When the matter stood thus, the learned counsel for appellant No.2 filed memo dated 22.10.2018 seeking permission of this Court to retire from the case. In the said memo, learned counsel stated that he had addressed letter dated 24.09.2018 to the surviving second appellant inter alia intimating her that he would retire from the case as per her instructions. The said letter, which was sent by registered post with acknowledgement due to appellant No.2, was returned with postal shara ‘not claimed’. By placing the said facts before this Court, learned counsel for appellant No.2 had sought permission of this Court to retire from the case on the ground that he had no instructions to go on with the matter. Considering the same, coordinate Bench of this by its order dated 23.10.2018, permitted learned counsel for the second appellant to retire from the case and ordered this matter to be re-listed on 25.10.2018 by showing the name of appellant No.2 in the cause list.
7. Perusal of the order sheet would indicate that this matter was posted before this Court on several occasions i.e., 26/10/2018, 21/12/2018, 07/01/2019, 08/01/2019, 09/01/2019, 10/01/2019, 11/01/2019, on which day, the matter was adjourned to this day.
8. Today, when this matter is called, neither the second appellant nor any other counsel on her behalf appeared before the Court. Hence, this Court feel that in the fact situation, no purpose would be served in keeping this appeal pending for statistical purpose.
9. Accordingly, this appeal is dismissed for non- prosecution.
Sd/- JUDGE sma