ORDER
1. I have heard the petitioners’ learned Advocate, respondents’ learned Advocate and the learned Government Advocate.
2. The petitioner has disputed the validity of an order passed by the Tribunal in the year 1982 through a petition filed in the year 1997. In paragraph 7 of the petition, an averment has been made to the effect that the petitioners’ family was represented by Ramappa Lachchappa Lamani who was effectively the Manager or Kartha and that he had not discussed or informed the remaining members of the family about the proceedings in question. According to the petitioners, it was only in the year 1997 when their possession was sought to be disturbed, that they came to know of the order of 1982, and that they obtained copies and have challenged the same. Effectively, the petitioners are trying to overcome the long delay in approaching the Court on the ground that they were not aware of the proceedings.
3. The respondents are represented and the main contesting respondent R-3 has opposed the grant of any relief. According to him, the Tribunal had earlier passed an order in the year 1979 which was challenged by the respondent in Writ Petition No. 3524 of 1981. This Court remanded the proceedings to the Tribunal on 2-3-1981 and the Tribunal after holding a fresh enquiry passed an order on 20-11-1982 in favour of the applicant. The R-3 has pointed out to this Court that the subsequent formalities have been completed insofar as the requisite payments have been made, Form 10 has been issued and the changes in the mutation have been effected in the year 1983. All these documents have been produced before the Court and the submission canvassed is that this Court should not permit any reopening of the proceedings which have assumed finality in the year 1983 itself.
4. Petitioners’ learned Advocate has placed reliance on a decision of the Supreme Court in the case of P.B. Roy v Union of India, wherein, the Apex Court in paragraph 8 did have occasion to observe that once a petition has been admitted, that the delay should not come in the way of a party if the case is positively good on merits. The learned Advocate has submitted that the impugned order of 1982 is seriously vulnerable because according to him, the Tribunal has once again bypassed the legal requirements of holding a proper and valid enquiry. He has demonstrated that the Tribunal has recorded hardly three or four questions and has made an observation that a written statement has been filed and there is nothing more to add. His contention is that there are references to the effect that the R-3 had advanced certain monies to the petitioner’s late brother and that therefore, the R-3’s case can never be on par with that of a tenancy as, it would clearly indicate that there was
a mortgage transaction. His further submission is that if this is the position and no proper enquiry has been held, even though there is a long delay, the order, itself is vitiated and that a fresh enquiry should be instituted.
5. The respondents’ learned Advocate has relied on an earlier decision of this Court in the case of Smt. Gowramma and Others v State of Karnataka and Others, wherein, the learned Single Judge in a proceeding under the Karnataka Land Reforms Act held that where there was a ground to conclude that the petitioners have challenged the grant of occupancy rights after ten years and having been aware of the proceedings, that there is a complete bar to their being permitted to reopen the case. The learned Advocate who represents R-3 submits that even as far as the merits are concerned, if the record is perused that it will be seen that both the parties had filed written statements which are on record and that the questions put in the course of the enquiry were only by way of additional evidence. His submission is that at this late stage, it would be totally impermissible to permit any reopening of the proceedings.
6. There are no hard and fast rules with regard to situations in which a Court will permit reopening of the proceedings even after a considerable lapse of time though, the Courts have laid down definite guidelines which indicate that the challenge must be within a reasonable period of time and secondly that there must be full, valid and proper explanation for the delay. Also, the Courts need to take into account the question as to whether the order has been translated into a total stage of finality and in such a situation, whether it is possible to reverse all that has happened. The petitioners’ learned Advocate is right to the extent that there may be exceptional cases where the Courts are permitted a challenge, but that is, provided a very valid case has been made out. One such instance could be where a fraud has taken place or where an ex parte order has been snatched without notice to the opposite party who is totally unaware of the proceedings.
7. I have very carefully examined the merits of the present case and I find that after the remand by the High Court, both the parties have set down their respective positions in writing. The petitioner has not afforded any explanation with regard to the written statement that is on record and secondly, the contention that the petitioners were not aware of the proceedings for seventeen years is rendered totally false because the petitioner had appeared at the stage after the remand and it is obvious that they were aware of the order in the subsequent proceedings and despite this, if nothing has been done for seventeen years, on the facts of the present case, there would be a total bar to permit a challenge at this late stage. Also, I am guided by the observations of the Supreme Court because it is well-settled law that a Court must also look to the merits of the case and examine whether a serious miscarriage of justice has occurred. In the present instance, I find that this is not the position because the respondent-petitioner had appeared before the Tribunal on
both occasions. It is the respondent who brought the case upto the High Court and therefore, if the respondent was dissatisfied with the order passed after a remand, there is no doubt about the fact that the same would have been challenged. We are therefore led to the position that the present petitioners who were the respondents before the Tribunal have accepted the verdict of the Tribunal which has assumed finality and after the lapse of seventeen years, and long after the death of the party who had appeared before the Tribunal, a challenge has been presented by the relatives. On these facts, it would be impossible for this Court to permit any reopening of the proceedings particularly in the light of the present record.
8. This being the position, the writ petition fails on merits and stands dismissed. In the circumstances of the case, there shall be no order as to costs.