Karnataka High Court

Sri Syed Jaleel Sha vs Sri Syed Sadiq Pasha on 14 December, 2021

Bench: B.M.Shyam Prasad

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 14TH DAY OF DECEMBER 2021

                         BEFORE

      THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

       WRIT PETITION NO.18484/2021 (GM-CPC)

BETWEEN :

SRI SYED JALEEL SHA
SINCE DEAD BY HIS LRS

SRI SYED ZIAULLA PASHA
S/O LATE SYED JALEED SHA
SINCE DEAD REP BY HIS LR

SRI SYED SHUJATH PASHA
S/O LATE SYED ZIAULLA SHA
(SINCE DEAD REP BY HIS LRS
WHO ARE ALREADY ON RECORD
AS RESPONDENT NOS. 1 (A) (II) TO

1(A) (V)/ PETITIONER NOS. 1 TO 4)

1. SMT NAZEEMA BEGUM D/O LATE SYED ZIAULLA SHA AGED ABOUT 53 YEARS,

2. SRI MATHEEN SHA S/O LATE SYED ZIAULLA SHA AGED ABOUT 51 YEARS,

3. SRI MUJAHID SHA D/O LATE SYED ZIAULLA SHA AGED ABOUT 49 YEARS,

4. SMT HUDA ASMA D/O LATE SYED ZIAULLA SHA AGED ABOUT 43 YEARS,

PETITIONER NOS. 1 TO 4 ARE RESIDING AT NO 87/A, 9TH MAIN 34TH CROSS, YARAB NAGAR BANASHANKARI 2ND STAGE BENGALURU - 560 070.

5. SRI SYED KALEEMULLA SHA S/O LATE JHALEED SHA AGED ABOUT 67 YEARS,

6. SRI SYED KHALENDAR SHA S/O LATE SYED JALEEL SHA AGED ABOUT 67 YEARS,

7. SRI SYED JALENI SHA S/O LATE SYED JALEEL SHA AGED ABOUT 63 YEARS,

8. SRI SYED ZABEEULLA SHA S/O LATE SYED JALEEL SHA AGED ABOUT 47 YEARS,

SMT. AKHILA D/O LATE SYED JALEEL SHA SINCE DEAD REP BY HIS LRS WHO ARE ALREADY ON RECORD AS RESPONDENT NOS. 1(B) (C) (D) & (E) PETITIONER NOS. 5 TO 8)

SMT AMJAD D/O LATE AKHILLA (SINCE DEAD REP BY HIS LRS WHO ARE ALREADY ON RECORD AS RESPONDENT NOS. 1(B) (C) (D) & (E) PETITIONER NOS. 5 TO 8)

SMT GULNAZ D/ LATE SYED JALEEL SHA (SINCE DEAD REP BY LRS WHO ARE ALREADY ON RECORD AS RESPONDENT NOS. 1(B) (C) (D) & (E) PETITIONER NOS. 5 TO 8)

SMT ZREENA D/O LATE SYED JALEEL SHA (SINCE DEAD REP BY HIS LRS WHO ARE ALREADY ON RECORD AS RESPONDENT NOS. 1(B) (C) (D) & (E) PETITIONER NOS. 5 TO 8)

SRI SYED KHURSHID SHA S/O LATE USMAN SHA SINCE DEAD BY HIS LRS

SRI SYED ASIF PASHA S/O LATE SYED KHURSHID SHA SINCE DEAD BY HIS LRS

9. SMT SHABANNA TAJ W/O LATE SYED ASIF PASHA AGED ABOUT 49 YEARS,

10. SRI SYED JUNED PASHA S/O LATE SYED ASIF PASHA AGED ABOUT 36 YEARS,

11. SMT KUMARI RUKYA D/O LATE SYED ASIF PASHA AGED ABOUT 32 YEARS,

PETITIONER NOS. 9 TO 11 ARE RESIDING AT HINDUSTAN ENTERPRISES SATHYANARAYANA COMPLEX NH -4 NEAR BUS STAND DABASPET SOMPURA HOBLI NELAMANGALA TALUK

BENGALURU RURAL DISTRICT - 562 111.

12. SRI SYED MAHAMMED PASHA S/O LATE SYED KURSHID SHA AGED MAJOR,

13. SRI SYED YASEEN PASHA S/O LATE SYED KURSHID SHA AGED MAJOR

14. SRI SYED MAHEBOOB PASHA S/O LATE SYED KURSHID SHA AGED MAJOR

15. SRI SYED CHAND PASHA S/O LATE SYED KURSHID SHA AGED MAJOR,

16. SMT JABEEN TAJ D/O LATE SYED KURSHID SHA AGED MAJOR,

SMT.YASMEEN TAJ D/O LATE SYED KURSHID SHA SINCE DEAD REPRESENTED BY HIS LRS WHO ARE ALREADY ON RECORD AS RESPONDENT NO 2 (E)/ PETITIONER NO.15)

17. SMT TABASUM D/O LATE SYED KURSHID SHA AGED MAJOR,

18. SMT.SHABEENA D/O LATE SYED KURSHID SHA AGED MAJOR,

19. SMT. SHAHEENA D/O LATE SYED KURSHID SHA AGED MAJOR,

20. SMT NASREENA D/O LATE SYED KURSHID SHA AGED MAJOR,

PETITIONER NOS. 12 TO 20 ARE RESIDING AT HINDUSTAN ENTERPRISES SATHYANARAYANA COMPLEX N H 4 ROAD NEAR BUS STAND DABASPET, SOMPURA HOBLI NELAMANGALA TALUK BENGALURU RURAL DISTRICT - 562 111.

SYED KAHLEEL SHA S/O LATE SYED USMAN SHA (SINCE DEAD REP BY HIS LRS WHO ARE ALREADY ON RECORD AS RESPONDENT NOS. 3(A) TO 3(B) & 3(D) PETITIONER NO. 15)

21. SMT.ASMATH UNNISSA D/O LATE SYED KHALEEL SHA AGED 68 YEARS,

22. SRI.SYED MUNEER PASHA S/O LATE SYED KHALEEL SHA AGED ABOUT 66 YEARS,

23. SRI.SYED SALEEM PASHA D/O LATE SYED KHALEEL SHA AGED ABOUT 58 YEARS,

SMT.NAZMUNNISSA D/O LATE SYED KHALEEL SHA

(SINCE DEAD REPTD BY HER LRS WHO ARE ALREADY ON RECORD AS RESPONDENT NO.3(F) (I) TO 3 (F) (III) 3(F) (VI)/ PETITIONER NOS. 24 TO 27)

24. SMT.NUZARATH UNNISSA D/O LATE NAZMUNISSA AGED ABOUT 49 YEARS,

25. SRI.SYED MUJAHID PASHA S/O LATE NAZMUNNISSA AGED ABOUT 44 YEARS,

26. SMT.RAZIA SULTHANA D/O LATE NAZMUNNISSA AGED ABOUT 42 YEARS,

SMT.RESHMA D/O LATE NAZMUNNISSA (SINCE DEAD REPTD BY HER LRS WHO ARE ALREADY ON RECORD AS RESPONDENT NOS.3(F) (I) TO 3(F) (III) & 3 (F) (VI)/ PETITIONER NOS. 24 TO 27)

SMT. NOORUNISSA D/O LATE NAZMUNNISSA (SINCE DEAD REPTD BY HER LRS WHO ARE ALREADY ON RECORD AS RESPONDENT NOS.3(F) (I) TO 3(F) (III) & 3 (F) (VI)/ PETITIONER NOS. 24 TO 27)

27. SMT.ISHRAT UNNISA D/O LATE NAZMUNNISSA AGED ABOUT 34 YEARS,

PETITIONER NOS. 21 TO 27 ARE R/AT NO.132, 10TH CROSS, P.H.COLONY, TUMKUR ROAD, TUMKUR TALUK - 572 101.

28. SRI.SYED AZAM PASHA S/O LATE KHALEEL SHA AGED ABOUT 52 YEARS,

R/AT LAKKUR VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT - 562 111.

SRI. NOORULLA SHA S/O LATE SYED KHALEEL SHA

(SINCE DEAD REPTD BY HIS LRS WHO ARE ALREADY ON RECORD AS RESPONDENT NOS.3 (1) (I) TO 3(I) (IV) & PETITIONER NOS. 29 TO 32).

29. SMT. NASIMMUNISA W/O LATE NOORULLA SHA AGED ABOUT 64 YEARS,

30. SMT. SAMEEN HAZARA D/O LATE NOORULLA SHA AGED ABOUT 44 YEARS,

31. SMT. SAMEEN SHAIRA D/O LATE NOORULLA SHA AGED ABOUT 39 YEARS,

32. SMT. GOUSIA BANU D/O LATE NOORULLA SHA AGED ABOUT 36 YEARS,

PETITIONER NOS. 29 TO 32 ARE R/AT MUTTON MARKET ASAN MOHALLA SIRA TOWN AND TALUK TUMKUR - 532 137.

... PETITIONERS

(BY SRI. SANDESH C.R, ADVOCATE)

AND :

SRI SYED SADIQ PASHA SINCE DEAD BY LRS

(SINCE DEAD REPRESENTED BY HIS LRS WHO ARE ALREADY RECORD AS PETITIONER NO.S 1 (A) AND 1(D) TO (F)/ RESPONDENT NOS. 1 TO 4)

1. MRS. SAHARIFUNNISA W/O LATE SYED SADIQ PASHA AGED ABOUT 74 YEARS,

SYED SHAHID PASHA S/O LATE SYED SADIQ PASHA

(SINCE DEAD REPRESENTED BY HIS LRS WHO ARE ALREADY RECORD AS PETITIONER NO.S 1 (A) AND 1(D) TO (F)/ RESPONDENT NOS. 1 TO 4)

SRI. SYED IRSHAD PASHA S/O LATE SYED SADIQ PASHA

(SINCE DEAD REPRESENTED BY HIS LRS WHO ARE ALREADY RECORD AS PETITIONER NO.S 1 (A) AND 1(D) TO (F)/ RESPONDENT NOS. 1 TO 4)

2. SRI. SYED SAJJAD PASHA S/O LATE SYED SADIQ PASHA AGED ABOUT 49 YEARS,

3. SRI. SYED SHUJATH PASHA S/O LATE SADIQ PASHA AGED ABOUT 47 YEARS,

4. SRI. SYED HAMAIRUNNISA D/O SYED SADIQ PASHA AGED ABOUT 42 YEARS

RESPONDENT NOS. 1 TO 4 ARE R/AT BANASHANKARI II STAGE 34TH CROSS, 9TH MAIN ROAD BENGALURU - 560 070.

5. SRI. SYED HABIB SHA S/O LATE SYED KHALEEL SHA AGED ABOUT 64 YEARS,

6. SMT. ANSAR UNNISSA D/O LATE SYED KHALEEL SHA AGED ABOUT 60 YEARS,

RESPONDENT NOS. 5 AND 6 ARE R/AT NO. 132, 10TH CROSS P.H. COLONY TUMKUR - 572 101.

7. SRI. SYED GHOUSE PASHA S/O LATE SYED KHALEEL SHA AGED ABOUT 56 YEARS,

8. SRI. SYED AKRAM PASHA S/O LATE SYED KHALEEL SHA AGED ABOUT 54 YEARS,

9. SRI. SYED MOULANA S/O LATE SYED KHALEEL SHA AGED ABOUT 50 YEARS,

10. SMT. SHAKEELA D/O LATE SYED KHALEEL SHA AGED ABOUT 48 YEARS,

RESPONDENT NOS. 7 TO 10 ARE R/AT LAKKURU VILLAGE SOMPURA HOBLI NELAMANGALA TALUK BENGALURU RURAL DISTRICT - 562 111.

... RESPONDENTS

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE COURT OF ADDL CIVIL JUDGE AND JMFC AT NELAMANGALA, BENGALURU RURAL DISTRICT TO DECIDE / DISPOSE OF THE FINAL DECREE PROCEEDINGS IN FDP NO.1/2007 VIDE ANNEXURE-G WITHIN A PRESCRIBED PERIOD OF TWO MONTHS OR AT THE EARLIEST SINCE THE MATTER IS AT THE FINAL STAGE IN ACCEPTANCE OF THE COURT COMMISSIONERS REPORT OF SURVEY MADE ON THE SUBJECT SCHEDULE PROPERTIES.

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

The petitioners, who are the legal heirs of the

original plaintiffs in O.S. No.42/1990 which is decreed

on 31.01.2005, have sought for the direction to the

Court of Civil Judge, Nelamangala [for short, 'the civil

Court'] in FDP No.1/2007 to decide/dispose of this

proceeding within a prescribed period of two months or

at the earliest since the matter is at the final stage on

acceptance of the Court Commissioner's report of

survey.

The learned counsel for the petitioner submits

that the appeal filed by one of the defendants in Regular

Appeal No.2/2009 as against the aforesaid Judgment

and decree dated 31.01.2005 is dismissed for default,

and the application filed for restoration of the appeal in

Misc. petition No.24/2010 is also not being prosecuted.

The appellant's sons have filed their own appeals

without including all the family members, and they are

also not prosecuting these proceedings. This Court, in

the writ petition in W.P. No.131/2018 disposed of on

27.02.2018, in the circumstances of the case, has

observed thus while rejecting the application for stay of

the final decree proceedings until the disposal of the

Miscellaneous Application.

"4. It is seen that the application filed under Order 21 Rule 26 is canvassed on the ground of

pendency of the Regular Appeal in R.A.No.235/2005 (registered as R.A.No.2/2009). It is not in dispute that the said Regular Appeal came to be dismissed for non-prosecution vide order dated 25.02.2010. The petitioner was not diligent in seeking the restoration of the appeal and the Miscellaneous Application has been pending for the last eight years. The suit is of the year 1990 and despite the passage of more than 27 years, the successful litigants have failed to enjoy the fruits of the decree ordered in their favour. Hence, the petitioner cannot be permitted to take advantage of his own lack of diligence and absolute negligence in prosecuting the appeal and Miscellaneous Application. The petitioner cannot now be permitted to contend that the FDP Court be directed not to accept the Court Commissioner report. The Regular Appeal preferred by the petitioner i.e., legal representatives of the sole defendant came to be dismissed for non-prosecution. If the petitioner had been diligent, it would not have been dismissed for non-prosecution. Hence, at this stage, the petitioner cannot be permitted to profit out of his own indolence and lack of diligence. Hence, this Court is of the considered opinion that there is no merit in the petition."

Notwithstanding the same, the final decree proceeding

has not culminated in a final decree. Presently, the

Court Commissioner has filed his report and will have

to be considered in accordance with law.

This Court is of the considered view that, in the

light of the facts and circumstances urged, the

petitioners must be at liberty to call upon the final

decree Court to dispose of the final decree proceedings

expeditiously placing on record a certified copy of this

order and if such request is made with the certified copy

of this order, the final decree Court shall take every

measure as would be necessary for expeditious disposal