Allowed

Sri K Dhanjaya v. the Forest Range Officer

Karnataka HC15 Mar 2023WP/17363/2022

Case brief

AI extract

What is this about?

Petitioner filed a writ petition challenging the order of dismissal for default of a miscellaneous application seeking restoration of a land grabbing case. The High Court held the petitioner must be heard, allowed the petition, set aside the dismissal order, restored the main application, and directed the Special Court to afford an opportunity of hearing.

What did the court decide?

The impugned order dismissing the miscellaneous application was set aside; the main application was restored, and the matter remanded for hearing after affording opportunity to the petitioner.

Sri K Dhanjaya Vs the Forest Range Officer — Civil Procedure and Limitation | Karnataka HC (2023)

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WP No. 17363 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF MARCH, 2023

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE UMESH M ADIGA WRIT PETITION NO. 17363 OF 2022 (KLGP)

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BETWEEN:

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Digitally signed by D K BHASKAR Location: HIGH COURT OF KARNATAKA

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SRI K DHANJAYA S/O LATE KRISHNAPPA AGED 44 YEARS KARADAHALLI VILALGE DELAPURA HOBLI NAGAMANGALA TALUK MANDYA DISTRICT 571432.

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…PETITIONER

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(BY SRI. SURENDRA KUMAR N.,ADVOCATE)

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AND:

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THE FOREST RANGE OFFICER NAGAMANGALA RANGE T B EXTENSION NAGAMANGALA 571432.

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THE DEPUTY CONSERVATOR OF FOREST MANDYA SUB FORESTRY DIVSION MANDYA 571401.

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THE CONSERVATOR OF FOREST MYSURU DIVISON MYSURU 570001.

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THE CHIEF CONSERVATOR OF FOREST STATE OF KARNATAKA ARYA BAHVAN MALLESHWARAM BENGALURU 560003.

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STATE OF KARNATAKA REP. BY ITS CHIEF SECRETARY DEPARTMENT OF FOREST VIDHANA SOUDHA BENGALURU 560001.

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…RESPONDENTS

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(BY SMT. A R SHARADAMBA .,AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO: QUASH THE ORDER PASSED BY THE KARNATAKA LAND GRABBING PROHIBITION SPECIAL COURT IN MISCELLANEOUS CASE NO. 2/20 DATED 24/08/2021 PRODUCED AT ANNEXURE-B AND THEREBY RESTORE THE PETITION TO ITS ORIGINAL POSITION AND DECIDE THE CASE ON MERITS.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, K. SOMASHEKAR .J., MADE THE FOLLOWING:

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ORDER

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This writ petition is filed by the petitioner challenging the order passed by the Karnataka Land Grabbing Prohibition Special Court in Misc.Case No.2/2020 dated 24.08.2021 vide

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Annexure-“B”. Various grounds have been raised in this writ petition seeking intervention relating to quashing the impugned order passed by the aforesaid Special Court and also seeking restoration of the petition to its original file in Misc.Case No.2/2020.

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Heard the learned counsel Shri Surendra Kumar N for the petitioner and so also the learned AGA namely Smt. A.R. Sharadamba who are present before Court physically.

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The learned counsel for the petitioner submits that he had initiated an original suit in O.S.No.20/2013 against the respondents / defendants on the file of the Civil Judge & JMFC, Nagamangala for grant of permanent and mandatory injunction in respect of the suit schedule property which is a granted land. He was put in possession of the suit schedule property where he has planted some Eucalyptus and Coconut trees and the age of the trees are around 45 to 50 years. However, the said suit came to be transferred to the Karnataka Land Grabbing Prohibition Special Court, Bengaluru and was numbered as LGC No.1743/2018. The matter was posted on 02.07.2019 before the Special Court to hear regarding

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maintainability and on that day, came to be dismissed for default. Hence, the petitioner had filed an application under Order IX Rule 9 of the CPC seeking to set aside the order of dismissal dated 02.07.2019, which application was numbered as Misc.Case No.2/2020.

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Due to the Standard Operating Procedure which was prevailing then, he came to know from the office staff that the said case was posted before Court on 26.08.2021. Hence, he had gone to Court on 26.08.2021 to attend the said case. However, he was informed by the office that the said Misc.Case No.2/2020 was already dismissed for default on 24.08.2021 itself vide Annexure-“B”. Hence, he has filed the present petition seeking to quash the said order dated 24.08.2021 and thereby to restore the petition to its original file.

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It is the submission of the learned counsel for the petitioner that he has a good case on merits and that is why he wants to participate in the aforesaid proceedings, that is in LGC No.1743/2018. The Special Court, without granting an opportunity of hearing to the petitioner, has proceeded to dismiss the Misc.Case No.2/2020 for default. The learned

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counsel has also produced the order-sheet maintained by the Special Court in LGC(T) No.1918/2018 relating to initiation of Miscellaneous Proceedings in Misc.No.2/2000 vide Annexure-“B”. The order-sheet dated 22.12.2020 reveals that the case was called and the petitioner remained absent and even there was no return of intimation letter. Consequently, again it was slated for 16.04.2021. On that day also, this case was called. But the petitioner who has initiated the proceedings remained absent. Consequently, intimation letter was issued and the same has not been returned. Then again, the matter was slated on 23.12.2020. The petitioner remained absent. Again, fresh notice was issued to the petitioner for appearance on 27.05.2021. Even on 24.08.2021 when the case was called, the petitioner remained absent. Nobody represented the petitioner and consequently the petition came to be dismissed for non-prosecution.

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The said order dated 24.08.2021 passed by the Special

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Court is under challenge in this petition by urging various grounds and referring to the order sheet maintained by the Trial Court relating to initiation of the case in Misc.No.2/2020. In view of the fact that the petitioner has not been extended an

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opportunity of hearing in the matter, learned counsel for the petitioner seeks to allow this petition and to set aside the order impugned and thereby to remand the matter to the Special Court to comply with the doctrine of audi alterem partem . If not interfered, it would result in a miscarriage of justice to the petitioner.

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Whereas the learned AGA for the respondent emphatically points out to the impugned order sheet maintained by the Trial Court relating to initiation of proceedings under Order IX Rule 9 read with Section 151 CPC. He submits that since there was no representation for the petitioner and in view of his absence on several dates of hearing, consequently the Misc.No.2/2020 came to be dismissed. There are no justifiable reasons or grounds to seek interference of the said order and to restore the same to the original file by setting aside the order passed by the Trial Court in Misc.No.2/2020. On all these premise, learned AGA seeks for dismissal of the writ petition as being devoid of merits.

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The writ petition has been filed by the petitioner under

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Articles 226 and 227 of the Constitution of India. For

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consideration of the present petition filed by the petitioner seeking to set aside the impugned order passed for nonprosecution, it is necessary to state that Section 151 CPC indicates inherent powers of the Court. It states that nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of this Court to make such orders as may be necessary to meet the ends of justice or to prevent the abuse of process of Court.

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Keeping in view the provision of Section 151 CPC, the said inherent power must be exercised judicially, judiciously and precautiously. If not, certainly it would result in a miscarriage of justice. Keeping in view the limb of this Section 151 CPC and more so, in order to secure the ends of justice equally applicable to both parties, and so also concept of Order IX Rule 9 CPC inclusive of Articles 226 and 227 of the Constitution of India, it is relevant to refer to Article 21 of the Constitution of India and more so, the doctrine of audi alterem partem under the Administrative law. Consequently, the petitioner not being heard in the matter, this Court deems it fit that it is necessary to provide an opportunity of hearing to the

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petitioner who is a party to the proceedings in LGC(T) No.1918/2018.

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Consequently, we proceed to pass the following:

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ORDER

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i) The writ petition is allowed and the impugned order passed by the Karnataka Land Grabbing Prohibition Special Court in Misc.CaseNo.2/2020 dated 24.08.2021 is hereby set aside.

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ii) Consequent upon setting aside the impugned order passed by the Special Court, the original case in LGC (T) No.1918/2018 is hereby restored to file as sought for.

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iii) Further, the matter is remanded to the Special Court for consideration afresh, after affording an opportunity of hearing to the petitioner. The petitioner shall participate in the proceedings in Misc.CaseNo.2/2020, without waiting for any process or notice in that matter.

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iv) The petitioner herein is directed to appear before the Special Court in Misc.CaseNo.2/2020 on 10.04.2023, without

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any further notice in the matter. He shall participate in the proceedings in Misc.No.2/2020 on the said date without fail and the Special Court shall afford an opportunity of hearing to the parties to respond to the petition filed under Order IX Rule 9 CPC, in writing and shall thereafter dispose of the same after

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hearing both the parties, in accordance with law.

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v) Whatever observation made in the matter shall not

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come in the way of disposal of the case in Misc.No.2/2020.

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Sd/JUDGE

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Sd/JUDGE

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Sri K Dhanjaya v. the Forest Range Officer

Case brief

What is this about?

What did the court decide?

Sri K Dhanjaya v. the Forest Range Officer

Case brief

What is this about?

What did the court decide?

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