Dismissed

Shekappa Mallappa Tamaragundi v. the State of Karnataka

Karnataka HC9 Jan 2019WA/101451/2016

Case brief

AI extract

What is this about?

The single-judge bench dismissed the application for condonation of a gross delay of over 8 years in filing a writ appeal. The court held that the appellant, being represented during the original writ petition and appearing subsequently without challenging the order, had waived their right to appeal.

What did the court decide?

Application for condonation of delay (I.A.No.1/2016) and the writ appeal are dismissed; all pending applications stood dismissed.

Shekappa Mallappa Tamaragundi Vs the State of Karnataka — Partition | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF JANUARY, 2019

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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WRIT APPEAL No.101451 OF 2016 (LR)

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BETWEEN:

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SHEKAPPA MALLAPPA TAMARAGUNDI AGE: MAJOR, OCC:AGRICULTURE, R/O. KALAKERI VILLAGE, TQ. MUNDARGI, DIST. GADAG. ... APPELLANT

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(BY SRI. B V SOMAPUR, ADVOCATE)

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AND

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THE STATE OF KARNATAKA, REP. BY ITS REVENUE SECRETARY, VIDHANA SOUDHA, BANGALORE-560001

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THE LAND TRIBUNAL, MUNDARGI, TQ. MUNDARGI, DIST. GADAG. REP. BY ITS CHAIRMAN

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VEERANA L.R. S/O. LATE TIPPANNA DONKAPPA METI, AGE: MAJOR, OCC: AGRICULTURE, R/O. KALAKERI VILLAGE, TQ. MUNDARGI, DIST. GADAG.

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RAMAPPA @ RAMANNA S/O BHIMAPPA KOPPANNANAVAR, SINCE DECEASED BY HIS L.RS.

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BASAVARAJ S/O RAMAPPA KOPPANNANAVAR AGE: 47 YEARS, OCC: AGRICULTURE

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DEVAPPA S/O RAMAPPA KOPPANNANAVAR AGE: 50 YEARS, OCC: AGRICULTURE

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BHIMAPPA S/O RAMAPPA KOPPANNANAVAR AGE: 52 YEARS, OCC: AGRICULTURE

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RESPONDENTS NO.4 TO 6 ARE R/O. KALAKERI VILLAGE, TQ. MUNDARGI, DIST. GADAG. ... RESPONDENTS

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(BY SMT. VEENA HEGDE, GOVT ADV FOR R1 & R2; SRI. SRINAND A. PACHHAPURE AND SMT. PALLAVI S. PACHHAPURE, ADVOCATES FOR R4 & R5; NOTICE TO R3 IS HELD SUFFICENT; R6 - SERVED)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO CALL FOR RECORDS & TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.23232/2002(LR) DATED 24.09.2007.

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I.A. NO.1/2016 IS FILED FOR CONDONATION OF DELAY.

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I.A. NO.1/2017 IS FILED FOR DISPENSATION.

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I.A. NO.2/2016 IS FILED FOR STAY.

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THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:

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JUDGMENT

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There is a delay of 3284 days in filing this appeal. An application has been filed seeking condonation of delay.

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Learned counsel for the appellant submits that the delay has occurred due to bona fide and unintentional reasons and that appellant came to know about the order of the learned Single Judge only on 18.08.2016 when he received notice from the Land Tribunal, Mundargi, directing him to appear on 20.08.2016. Thereafter, he contacted his advocate and after going through the records of the Tribunal he came to know about the impugned order passed by the learned Single Judge. Then he requested his Advocate to take steps to obtain certified copy of the order passed in the writ petition by the learned Single Judge and then approached the Advocate in Dharwad on 18.10.2016 and the appeal has been filed on

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20.10.2016. He submits that the appellant has a good case on merits.

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Per contra, learned counsel for the

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respondents No.4 and 5 Basavaraj and Devappa submit that no reason whatsoever has been assigned to explain gross delay of over eight years in filing the appeal. That the appellant herein was respondent No.4 in the writ petition, he was represented by an Advocate, who had in fact filed a caveat in the writ petition, therefore, it must be held that the appellant was aware of the order passed by the learned Single Judge on 24.09.2007. Having kept quiet for a long period of time the appellant has approached this Court on 20.10.2016 by filing an appeal. It is further submitted that the appellant had also appeared before the Land Tribunal on 21.11.2012 when proceedings were continued pursuant to the direction issued by this Court for the purpose of

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grant of occupancy rights in favour of the petitioners in the writ petition. Even at that time the appellant herein did not take steps to file an appeal and hence, this Court may not condone the gross delay of 3284 days in filing the appeal.

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Learned Government Advocate appearing for respondent Nos.1 and 2 also submitted that there is a long delay in filing the appeal and hence the same may not be condoned.

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Having heard learned counsel for the

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respective parties, we note that writ petition No.23232/2002 was disposed of by the learned Single Judge of this Court on 24.09.2007. The appellant herein was added as respondent No.4 in the said writ petition and he was represented by a counsel. He had also filed caveat petition along with respondent No.3 in the writ petition. It is also noted from the order sheet of the writ petition

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which is produced along with the certified copy of the order of the writ petition that on 24.09.2007 Sri. Shantareddy S. Mulimani had appeared for respondent Nos. 3 and 4 (appellant herein). The order was dictated in open Court and the writ petition was allowed. But the appellant herein applied for certified copy of the order dated 24.09.2007 only on 30.08.2016. There is no explanation whatsoever in the affidavit filed in support of the application seeking condonation of delay as to why for nearly 8 to 9 years no steps were taken by the appellant herein to seek the certified copy of the order impugned in this appeal or to take steps for filing of the appeal in time. Paragraph 3 and 4 of the affidavit in support of the application seeking condonation of delay read as under:

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“ 3. I state that, I came to the order passed by the Learned Single Judge in the said writ petition, only on 18.08.2016 when I received the notice issued by the

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Land Tribunal, Mundaragi through which I was directed to appear before Land Tribunal, Mundaragi on 20.08.2016. Immediately I contacted my Advocate at Mundaragi and I appeared before the Land Tribunal through my Advocate and after going through the records in the Land Tribunal, I came to know about the impugned order passed by the Learned Single Judge. Then I requested my Advocate to do the needful in the matter narrating all the facts to him. Then I obtained the copies of the necessary documents and approached my Advocate at Dharwad on 18.10.2016 and requested him to file appeal against the order of the Learned Single Judge and filed this appeal.

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I state that, I was not aware of the fact of passing of the impugned order till I received the notice on the Land Tribunal. Immediately after coming to know about the impugned order I have preferred this appeal. Therefore, there is a delay of 3284 days in filing of this appeal. The said delay is neither intentional nor deliberate. Hence, if the delay is not condoned and this appeal is not admitted for hearing on merits I will be put to great and irreparable loss, hardship and injustice. On the other hand if delay is condoned no loss or injustice will be caused to the respondents.”

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On the reading of the same, it is apparent that there is no explanation whatsoever as to what the appellant did till 18.08.2016 when

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the impugned order was passed on 24.09.2017. That apart, it is also the contention of leaned counsel for respondent Nos.4 and 5 as well as learned Additional Government Advocate that the appellant herein appeared before the Land Tribunal on 21.11.2012. Even at that stage, he did not think of filing the appeal.

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In the circumstances, we hold that in the absence of there being any explanation for condoning the delay of 3284 days in filing the appeal, the application seeking condonation of delay is liable to be dismissed and is dismissed. This is a case where the appellant has waived his right to file an appeal and it must be held that he has given up his right, title and interest in the land in question. In the circumstances, I.A.No.1/2016 is dismissed. Consequently, the appeal stands dismissed.

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In view of the dismissal of appeal, all

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pending applications stand dismissed.

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Sd/JUDGE

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Sd/JUDGE

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KGK

Shekappa Mallappa Tamaragundi v. the State of Karnataka

Case brief

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Shekappa Mallappa Tamaragundi v. the State of Karnataka

Case brief

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