Karnataka High Court
Prakash Babu Rao Pundapal, Major (Since ... vs The Land Tribunal, Represented By Its ... on 21 July, 2006
Equivalent citations: AIR2007KANT29, 2006(5)KARLJ281, AIR 2007 KARNATAKA 29, 2006 (5) AIR KANT HCR 658, 2006 A I H C 3742, (2006) 5 KANT LJ 281
Author: V. Jagannathan
Bench: V. Jagannathan
ORDER V. Jagannathan, J.
Page 0742
1. The present writ petition is directed against the order dated 28.2.1989 passed by the Land Tribunal, Belgaum, and the question Page 0743 that is raised in this petition is mainly whether the subject land in S. No. 43 of Honnihal village is mere a grass growing land or a cultivable agricultural land. The petitioner challenges the impugned order in his capacity as a trustee and successor in interest on behalf of Shri Maruthi Devasthana, Modaga, and the, grievance of the petitioner is that the Land Tribunal, by its impugned order, could not have granted occupancy rights in favour of R-3 to R-8.
2. Heard the learned Counsel for the petitioner and the learned Counsel for the contesting R-3 to R-8.
3. At the outset, the learned Counsel for the contesting respondents submitted that the very same order passed by the Land Tribunal dated 28.2.1989 was challenged in W.P. No. 37541/1997 and the said writ petition came to be dismissed for non-prosecution on 4.8.1999. Therefore, the present writ petition challenging the very same order is not maintainable in view of the dismissal of the earlier writ petition. In support of this submission, the learned Counsel for the contesting respondents drew my attention to the decision of this Court in the case of D. Sangya Naik v. Department of Telecom, New Delhi .
4. On the other hand, the learned Counsel for the petitioner submitted that the dismissal of the earlier writ petition challenging the very same order does not come in the way of the present writ petition being heard by this Court because, the petitioner in the earlier Writ Petition No. 37541/1997 was not the trustee of the temple in question and it is the petitioner in the instant writ petition, who is the trustee of the temple in question and, following the death of the petitioner, his legal representatives have stepped into his shoes to continue the present proceedings. Therefore, the present petition is perfectly maintainable.
5. Having heard the submissions made to the above effect, the question for consideration is whether the present writ petition is maintainable or not.
6. It is not in dispute between the parties that the order passed by the Land Tribunal dated 28.2.1989 was questioned in W.P. No. 37541/1997 and the said writ petition was filed by Maruthi Devasthana, Modaga, by its Trustee Govinda Gindu Kulakarni, and the said writ petition came to be dismissed for non-prosecution. The very same order, which was the subject matter of the above writ petition, has again been assailed in the present writ petition though by a different person claiming to be the trustee of the temple in question. In the decision referred to by the learned Counsel for the contesting respondents in the case of D. Sangya Naik, supra, it has been held by a learned Single Judge of this Court in paragraphs-9 and 10 as under:
9. These Rules provide for restoration of suits dismissed under Rule 8 for non-appearance. It also mandates that the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. It enables him to apply to the same Court which dismissed the suit for non-appearance for setting aside the order of dismissal on his showing sufficient cause for his non-appearance when the suit was called on for Page 0744 hearing. The dismissal of the suit under Rule 8 does not operate as "res-judicata". It only imposes a disability on the plaintiff. This Rule is based on sound public policy. The principle underlying this provision is that a litigant who comes to Court with a cause should agitate the matter with due diligence and take a decision on merits, so that a finality is reached. Otherwise, there would not be any finality, and the opposite party could be harassed endlessly, by allowing the proceedings to be dismissed for non-prosecution and re-agitate the matter time and again at his convenience and leisure. Then this judicial process would become an instrument of oppression rather than a means to resolve disputes in a civilized way. Therefore, it is a rule of estoppel, which finds a statutory recognition in Order IX Rule 8 CPC, which prevents the party from filing a suit on the same cause of action, if the earlier suit is dismissed for non-appearance. These provisions would also equally apply to the writ proceedings. When the earlier writ petition was dismissed for non-appearance of the petitioner on the day the case was set down for hearing, the petitioner shall be precluded from bringing a fresh writ petition on the same cause of action challenging the very same order which was the subject matter of the said proceedings.
10. The argument was that the petitioner is innocent, he had entrusted his case to his counsel who has let him down and therefore he should not be penalized. Though technically the writ petition is dismissed for non-prosecution on the date the case was set down for hearing, it cannot be said that such an order is bad. When a party engages a counsel it is his duty to see that his counsel is present when the case is called for hearing. Order IX Rule 9 provides for a remedy to the petitioner to file an application to recall the said order by showing sufficient cause for his absence. When a legislature provides a remedy for getting the said order set aside, he has to follow the procedure prescribed under law. If he does not choose to follow the said procedure and if chooses to follow the procedure which is not recognised in law, he cannot have any grievance. Under these circumstances, the bar contained in Order IX Rule 9 CPC which is equally applicable to writ rules is absolute and no discretion is conferred on any Court to ignore the aforesaid statutory provision and entertain the second writ petition challenging the order which was the subject matter of earlier proceedings which came to be dismissed for non-prosecution.
7. In the light of the aforesaid decision of this Court, in the instant case also, the earlier writ petition though dismissed for non-prosecution, was in respect of the very same order that is assailed in the present writ petition. Therefore, I am of the considered opinion that the present writ petition is not maintainable for the reasons stated above.
8. That apart, the present writ petition has been filed not in the capacity of the Temple in question but it is filed by one Prakash Babu Rao Pundapal, since deceased, and his L.Rs. are brought in his place. For the said reason also, the writ petition is liable to be dismissed.
Page 0745
9. Finally, the order that is assailed in this petition was passed as far back as in the year 1989 and, as rightly put by the learned Counsel for the contesting respondents, the original trustee did not question the impugned order for over two years and it is only after his death, that the present writ petition came to be filed and the fact that there is a long delay in questioning the impugned order is also one of the factor, though not the sole factor, which inclines this Court to dismiss the present writ petition.
10. In the result, the writ petition is dismissed.