Shri. Sappaji S/O Mhatru Donkari vs Vajeer S/O Chatru Dhangar @ ...
2023 Latest Caselaw 5413 Kant

                                                     -1-
                                                           NC: 2023:KHC-D:8562
                                                             MSA No. 100022 of 2016




                                   IN THE HIGH COURT OF KARNATAKA

                                             DHARWAD BENCH

                               DATED THIS THE 8TH DAY OF AUGUST, 2023

                                                  BEFORE
                                THE HON'BLE MR JUSTICE C.M. POONACHA
                         MISCELLANEOUS SECOND APPEAL NO. 100022 OF 2016
                        BETWEEN:

                        1.   SHRI. SAPPAJI S/O MHATRU DONKARI,
                             AGE:74 YEARS, OCC:AGRICULTURE,
                             R/O: AGASGE-591 143,
                             TQ AND DIST: BELAGAVI.

                        2.   SHRI. MUKUND S/O SAPPAJI DONKARI,
                             AGE:39 YEARS, OCC:AGRICULTURE,
                             R/O: AGASGE-591 143,
                             TQ AND DIST: BELAGAVI.

                                                                         ...APPELLANTS

                        (BY SRI. ABHISHEK, C. PATIL, ADVOCATE)

           Digitally
           signed by
                        AND:
           SHIVAKUMAR
SHIVAKUMAR HIREMATH
HIREMATH   Date:        1.   SHRI. VAJEER S/O CHATRU DHANGAR @ KAGNIKAR,
           2023.08.10
           10:33:45
           +0530
                             AGE:74 YEARS, OCC:AGRICULTURE,
                             R/O: TANAJI GALLI, KADOLI-591 143,
                             TQ AND DIST: BELAGAVI.

                        2.   SHRI. RAJU S/O CHATRU DHANGAR @ KAGNIKAR,
                             AGE:63 YEARS, OCC:AGRICULTURE,
                             R/O: TANAJI GALLI, KADOLI-591 143,
                             TQ AND DIST: BELAGAVI.

                        3.   SHRI. KALLAPPA S/O RAYAPPA DHANGAR @ KAGNIKAR,
                             AGE:35 YEARS, OCC:AGRICULTURE,
                             R/O: TANAJI GALLI, KADOLI-591 143,
                             TQ AND DIST: BELAGAVI.
                               -2-
                                        NC: 2023:KHC-D:8562
                                            MSA No. 100022 of 2016




                                                     ...RESPONDENTS

(NOTICE TO R1, R2 & R3 IS HELD SUFFICIENT)

     THIS    MISCELLANEOUS    SECOND    APPEAL    IS   FILED
U/ORDER.XLIII RULE 1(u) R/W SEC.104 CPC., 1908, AGAINST THE
JUDGEMENT    AND   DECREE    DTD:  11.12.2015    PASSED   IN
R.A.NO.231/2015 ON THE FILE OF THE XI ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BELAGAVI, ALLOWING THE APPEAL FILED
AGAINST THE JUDGEMENT AND DECREE DTD:13.08.2012 PASSED IN
O.S.NO.537/2006, ON THE FILE OF THE III ADDITIONAL CIVIL
JUDGE AND JMFC, BELAGAVI, DISMISSING THE SUIT FILED FOR
PERMANENT INJUNCTION.

     THIS MISCELLANEOUS SECOND APPEAL, COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                          JUDGMENT

Learned counsel for the appellant has filed a memo

which reads as follows:

"MEMO

Herein the memo filed on behalf of the Appellants is as under:

That, during the pendency of the present appeal, in pursuance of the impugned order of remand passed by the lower Appellate Court in R.A.231/2015, the O.S.No.537/2006 was restored to the file of III Addl. Civil Judge & J.M.F.C., Belagavi.

However, the suit was not properly contested and the same was dismissed for default and non- prosecution vide order dated 17.03.2017. Copy of the order is annexed with this memo for the kind perusal of this Hon'ble Court. In view of the dismissal of the suit for non-prosecution, the present appeal is rendered infructuous.

NC: 2023:KHC-D:8562 MSA No. 100022 of 2016

Wherefore, it is respectfully prayed that, the present appeal may kindly be disposed-off as having become infructuous, reserving liberty to restore the appeal to its original status in case the suit is restored by the plaintiffs.

Hence, this memo.

        Dharwad                               Sd/-
        08.08.2023                      Anand Ashtekar
                                    Advocate for Appellants"

2. In view of the aforementioned, the above appeal is dismissed as having become infructuous.

3. Liberty is reserved to seek for re-call of this order and to prosecute the present appeal on merits in the event if the suit that has been dismissed for non- prosecution is restored to its original file.

(Sd/-) JUDGE

SVH