1/4 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 07th DAY OF DECEMBER 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.54666/2017 (LB-RES) BETWEEN:
VISHWANATH .K S/O. NARAYANA KOTARI AGED ABOUT 59 YEARS R/O. PRAGATHI NAGAR R/O. 138-64(1), KANKANADY VILLAGE BAJAL, MANGALURU 575 027.
(BY Mr. DINESH KUMAR K. RAO, ADV., FOR Mr. R.B. DESHPANDE, ADV.,) AND:
THE COMMISSIONER MANGALORE CITY CORPORATION MANGALURU 575001.
... PETITIONER ... RESPONDENT THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, QUASH THE IMPUGNED ORDER DTD 20.09.2017 PASSED BY THE III ADDL. DISTRICT JUDGE, D.K. AT MANGALURU IN DISMISSING THE APPEAL FOR NON-ADDRESSING OF THE ARGUMENTS IN M.A.NO.51/2012 VIDE ANNX-B AND RESTORE THE APPEAL VIZ., M.A.NO.51/2012 ON ITS ORIGINAL FILE I.E., ON THE FILE OF DISTRICT JDUGE, D.K. AT MANGALURU AS PER ANNX-A TO CONSIDER THE CASE ON MERITS.
THIS W.P. COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr. Dinesh Kumar K. Rao, Adv. for Mr. R.B. Deshpande, Adv., for Petitioner 1. This writ petition has been filed being aggrieved by the short order passed by the Court below namely, III Addl.District Judge, Mangaluru, dated 20.09.2017 in M.A.No.51/2012, which is quoted below for ready reference:-
“No representation for Appellant till 3.20 p.m.
Arguments not addressed on the side of the Appellant. Hence Appeal is dismissed.
Sd/-
III ADJ, Mangaluru”.
2. The learned counsel for the petitioner Mr.K.Dinesh Kumar submitted before the same Court, way back on 29.07.2015 and 29.09.2015, vide order sheets produced before this Court, the Counsel for the Appellant had already argued his case on the said appeal and only the arguments of the Respondent were to be addressed to the Court and therefore, the learned Court below has erred in rejecting the appeal on account of the non-representation of the appellant and non-advancing of the arguments on the side of the appellant on 20.09.2017.
3. A bare perusal of the order sheet entry dated 29.07.2015 discloses that the appeal was heard partly on 29.07.2015 and then it was posted to 29.09.2015 and on 29.09.2015, it was recorded that the appellant has submitted that his arguments be taken as heard and therefore, the matter was postponed for arguments of the Respondent on 13.10.2015.
4. In the face of the aforesaid facts, the petitioner cannot contend that even after lapse of two years, the Court below could not call upon the appellant-petitioner to address the arguments on the merits of the appeal. The arguments concluded before two years in the year 2015, with the change of an Officer or even with the same Presiding Officer almost lost their efficacy and therefore, the non co-operation on the part of the appellant by not addressing the arguments on 20.09.2017 was absolutely uncalled for. In the absence of non- representation and non-advancing of the arguments by the appellant on 20.09.2017, the learned Court below cannot be faulted in dismissing the appeal for want of prosecution as aforesaid. On the contrary, such attitude on the part of the learned counsel for the appellant before the Court below deserves to be strongly deprecated.
5. The present writ petition filed against the said order is devoid of any merit and the same is liable to be dismissed and accordingly, it is dismissed. No costs.
Copy of this order be sent to the Respondent forthwith.
Srl.
Sd/- JUDGE