Allowed

Mebel D Souza v. Mrs Cecilia Crasta

Karnataka HC6 Mar 2021WP/25831/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka, under Article 227, allowed a writ petition by the legal representative of a deceased appellant. The court set aside an order abating a previous appeal due to lost applications not submitted at fault of the parties, restored the appeal, and remanded it to the lower appellate court for disposal within six months with lenient treatment.

What did the court decide?

The impugned order was set aside; the appeal in RA No.89/2005 was restored to the Board for consideration afresh; the lower court was directed to decide within six months.

Mebel D Souza Vs Mrs Cecilia Crasta — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.25831 OF 2015 (GM-CPC)

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BETWEEN:

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MEBEL D SOUZA, D/O ALTE GABRRIEL D. SOUZA, AGED ABOUT 44 YEARS, R/O IDDYA, KATLA, SURATHKAL VILLAGE, MANGALORE, D.K. DISDTRICT. PIN-574158. (BY SRI. RAVISHANKAR SHASTRY.G, ADVOCATE)

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…PETITIONER

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AND:

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1 . MRS. CECILIA CRASTA, WIDOWN OF ANTONY FRANCIS CRASTA, AGED ABOUT 81 YEARS, R/O IDDYA, KATLA, SURATHKAL VILLAGE, MANGALORE TALUK, D.K. DITRICT. PIN – 574 158. (SINCE DEAD BY R2-RONALD CRASTA ALREADY ON RECORD, AMENDED V/O DATED 4-9-19)

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2 . RONALD CRASTA, S/O ANTONY FRANCIS CRASTA, AGED ABOUT 41 YEARS, R/O IDDYA, KATLA, SURATHKAL VILALG,E MANGALORE TALUK, D.K. DISTRICT. PIN – 574 158.

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3 . MELWIN D’SOUZA D/O LATE GABRIEL D’SOUZA AGED 41 YEARS, R/O IDDYA, KATLA, SURATHKAL VILALGE, MANGALORE, D.K. DISTRICT. PIN-574158

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4 . IRINE D’SOUZA D/O LATE GABRIEL D’SOUZA AGED 38 YEARS, R/O IDDYA, KATLA, SURATHKAL VILLAGE, MANGALORE, D.K. DISTRICT. PIN-574158

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5 . ROSHAN D’SOUZA S/O LATE GABRIEL D’SOUZA, AGED 36 YEARS, R/O IDDYA, KATLA, SURATHKAL VILLAGE, MANGALORE, D.K. DISTRICT. PIN-574158.

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…RESPONDENTS

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(BY SRI. UDAYA PRAKASH MULIYA, ADVOCATE FOR R2; R3, R4, R5 ARE SERVED & UNREPRESENTED; V/O DTD: 04/09/2019, R2 IS TREATED AS LR’S OF DECD-R1)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD 02.12.2014 IN RS NO.89/2005 PASSED BY THE 1ST ADDL. DR.CIVIL JUDGE, MANGALORE CERTIFIED COPY OF WHICH OF PRODUCED AT ANNEXURE-A.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner claims to be the LR of the appellant in R.A.No.89/2005, wherein challenge was laid to an injunctive

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decree dated 01.06.2005, rendered in respondents’ suit in O.S.No.716/2003; the said appeal having been disposed off as having become abated, the writ petition is filed to lay a challenge thereto. After service of notice, the respondents

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having entered appearance through their counsel, resist the writ petition making submission in justification of the impugned order.

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Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter inasmuch as:

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(a) The said RA having been negatived, be it on the ground of abatement or otherwise, the order determining the said R.A. was set at naught by a co-ordinate Bench of this Court in petitioner’s RSA No.17/2007 remanding the matter to the First Appellate Court for consideration afresh.

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(b) The judgment in the RSA mentions about the petitioners’ multiple applications seeking to come on record as L.Rs. of the deceased appellant who incidentally happened to be his father; however, these applications which were ordered to be placed at the hands of the lower Appellate Judge did not reach him, whatever be the reason; in such circumstance, learned Judge ought to have looked into the RSA judgment and secured the applications and if the applications were not available, he ought to have directed

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rebuilding of the same; this having not being done, there is error apparent on the face of the record warranting indulgence of this Court.

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In the above circumstances, this writ petition succeeds; impugned order is set at naught; the petitioner’s appeal in R.A.No.89/2005 is restored to the Board for consideration afresh; petitioner is permitted to file fresh set of applications if available and in the alternate, to file a new set of applications of course, explaining the delay in filing the LR application & the application condonation of delay brooked during the period between death of the original appellant in RA and filing of the RSA.

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The learned Judge of the lower Appellate Court shall consider the matter bit leniently, regard being had to the complexity generated by the loss of applications for no fault of parties; ; learned Judge is requested to hear & dispose off the appeal within a period of six months, all contentions of the parties being kept open, and costs having been made easy.

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Sd/JUDGE

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Mebel D Souza v. Mrs Cecilia Crasta

Case brief

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Mebel D Souza v. Mrs Cecilia Crasta

Case brief

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