IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2019 PRESENT THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR WRIT APPEAL Nos.685-686/2018 (LB-RES) BETWEEN:
1. SMT. UMA @ MUDDAMMA W/O. LATE MOGAPPA GOWDA, AGED ABOUT 60 YEARS, R/AT BEHIND PETROL BUNK, J.P. NAGAR, BELUR, HASSAN DISTRICT – 573 115.
2. SMT. SALMA AKTHARI, W/O. NOUSHAD PASHA, AGED ABOUT 48 YEARS, R/AT DAWOOD SAB STREET, BELUR, HASSAN DISTRICT – 573 115. ... APPELLANTS (BY SRI KUMAR M.N., ADVOCATE) AND:
1. H.D. KUMARASWAMY S/O H.D. DEVE GOWDA AGED ABOUT 57 YEARS, PRESIDENT, JANATA DAL (SECULAR) POLITICAL PARTY, NO.19/1, FLAT FORM ROAD, SHESHADRIPURAM, BENGALURU – 560 020.
2. CHIEF OFFICER, BELUR MUNICIPALITY, BELUR – 573 115.
3. DEPUTY COMMISSIONER, HASSANA DISTRICT, HASSANA – 573 201. ... RESPONDENTS (BY SRI K. RAGHUPATHY, ADVOCATE FOR R-1; SRI A. NAGARAJAPPA, ADVOCATE FOR R-2; SRI S.S. MAHENDRA, AGA FOR R-3) THESE WRIT APPEALS ARE FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO i) SET ASIDE THE ORDER AND JUDGMENT DATED 23/11/2017 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NOS.41624- 625/2017 (LB-RES) IN ITS ENTIRETY; ii) SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 01/02/2018 PASSED IN R.P.NO.26/2018 AND 32/2018; iii) ALLOW THE WRIT PETITIONS OF THE APPELLANTS AND iv) ALLOW THE REVIEW PETITION OF THE APPELLANTS.
THESE WRIT APPEALS COMING ON FOR FINAL HEARING THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Yesterday (16/01/2019), these matters were listed for final hearing. As respondent Nos.1 and 2 were not present, the matters were adjourned to today (17/01/2019) in order to give them an opportunity of being heard.
2. Learned counsel for respondent No.2 is present in Court along with learned Addl. Government Advocate appearing for respondent No.3. However, once again learned counsel for respondent No.1 is absent. In the above circumstances we have heard these appeals.
3. The legality and correctness of order dated 23/11/2017, in W.P.Nos.41624-41625/2017, is assailed in these appeals.
4. We have heard learned counsel for the appellants, learned counsel for respondent No.2 and learned Addl. Government Advocate for respondent No.3.
5. Learned counsel for the appellants, inter alia, contended that the impugned order may be set aside and the matter may be remanded to the learned single Judge as a gross mistake had occurred in the pleadings of memorandum of writ petitions vis-à-vis paragraph Nos.5 to 13. That the said paragraphs had been bodily lifted from paragraph Nos.3 to 11 of the complaint filed by respondent No.1 herein. That the learned single Judge has construed the same as admissions by the appellants herein and thereby dismissed the writ petitions. That the petitioners have a good case on merits and that the matters are covered the decision of this Court in the case of B.C. Parthasarathy & others vs. Deputy Commissioner, Mysore District & Others [ILR 2012 Kar. 1]. Therefore, an opportunity may be granted to the appellants to rectify the pleadings in the memorandum of writ petition and seek a fresh consideration of the matter by the learned single Judge.
6. Learned counsel for respondent No.2 and learned Addl. Government Advocate appearing for respondent No.3 submit that this Court may not grant any indulgence to the appellants herein as they ought to have been careful while presenting the pleadings in the memorandum of writ petition and hence, there is no merit in this appeal.
7. Learned counsel for the appellants by way of reply contended that the mistake in the pleadings of memorandum of writ petitions has occurred due to inadvertence by the learned advocate who prepared the pleadings and that the appellants, being the parties ought not to suffer on account of the said inadvertence of their learned advocate.
8. We have compared paragraph Nos.5 to 13 in the memorandum of writ petition with paragraph Nos.3 to 11 of the complaint filed by respondent No.1 herein and we find that paragraph Nos.3 to 11 of the complaint filed by respondent No.1 have been bodily lifted and made part of the pleadings of the said writ petitions. We are unable to understand as to how the same could have been bodily lifted from the complaint filed by respondent No.1 herein, as the pleadings of the appellants herein when they were the writ petitioners in the writ petitions and were respondent Nos. 1 and 2 in the complaint. There is a total inadvertence and gross mistake and non application of mind in preparing the pleadings forming part of the memorandum of writ petitions. Based on the said mistake and pleadings learned single Judge construed the said pleadings as admissions on the part of the petitioners/appellants herein and dismissed the writ petitions without considering the same on merits. In order to ensure that the ends of justice is met in the matter, we deem it proper to set aside the impugned order of the learned single Judge and remand the matters to the learned single Judge for a fresh adjudication by permitting the appellants herein to file an amended pleadings in the writ petitions, if so advised.
9. Writ appeals are disposed in the aforesaid terms.
No costs.
Sd/- JUDGE Sd/- JUDGE S*