Sabahit, J. - (1.) THIS appeal by the respondents 1 (a) to (e) in the Writ petition is filed being aggrieved by the order dated 21.9.2004 wherein the learned Single Judge of this court has allowed the writ petition and quashed the order passed by the Land Tribunal, Mangalore dated 6.10.1981 and remitted the matter to the Land Tribunal for fresh disposal in accordance with law after due notice to all the parties concerned.
(2.) THE writ petition was filed by the first respondent herein challenging the order passed by the Land Tribunal. Initially Writ Petition No.5113/95 had been filed challenging the order passed by the Tribunal, after the establishment of the Land Reforms Appellate Authority the matter was transferred to Land Reforms Appellate Authority on 17.8.99 and thereafter, after the abolition of the Land Reforms Appellate Authority, CP was filed before this court which came to be numbered as CP.No.7764/91 which was disposed of along with connected CPs by order dated 9.10.97. THE CP was allowed and an order was passed to transfer the proceedings before the Land Reforms Appellate Authority and the same came to be numbered as W.P.No.5113/95. THE learned Single Judge of this court after hearing the learned counsel appearing for the parties negatived the contention of the appellants herein that appeal was not pending before the Land Reforms appellate Authority and wherefore, CP filed under Section 17 of the Land Reforms Amendment Act was not maintainable and remedy of the writ petitioner was to file a revision petition and the learned Single Judge further held that writ petition was maintainable and having found that the order passed by the Tribunal is not a speaking order as evidence adduced by the parties has not been considered by the Land Tribunal, quashed the order passed by the Land Tribunal and remitted the matter to the Land Tribunal for fresh disposal, in accordance with law by order dated 21.9.2004. Being aggrieved by the said order, respondents 1(a) to (e) have preferred this appeal. We have heard the learned Counsel appearing for the appellants, learned counsel appearing for the first respondent-writ petitioner and the learned HCGP appearing for respondents 3 and 4. The learned counsel appearing for the appellant vehemently argued that the sole appellant before the Land Reforms Appellate Tribunal died and LRs of the appellant were brought on record and wherefore, the proceeding abated and thereafter application had been filed for condoning the delay in filing the application to set aside abatement and to bring in record the LRs of the appellant before the appellate authority and as the appeal before the appellate authority had abated, question of transferring the proceedings before the appellate authority in CP and consequently treating it as writ petition was erroneous. The learned counsel submitted that when the appeal had abated and application was pending for setting aside abatement by condoning the delay and to set aside abatement, no matter was pending before the appellate authority and wherefore, the order passed in CP which was merged in the W.P.No.5113/95 was not maintainable. The learned Counsel in support of his contention has relied upon the Division Bench decision of this court in W.P.No.34430/92 dated 4.3.94 and decision of this court in W.P.No.19863/91 dated 3.2.94 in support of his contention that when the appeal was not binding before the appellate authority, CP was not maintainable under Section 70 of the Land Reforms Amendment Act, 1990 and consequently, writ petition was not maintainable and wherefore, the order passed by the learned Single Judge of this court negativing the contention raised before him regarding maintainability of CP and writ petition is liable to be set aside.
(3.) ON the other hand, learned Counsel appearing for the first respondent-writ petitioner submitted that the writ petition which was transferred to appellate Authority was pending before the appellate Authority and abatement is not dismissal of the appeal on merits and in view of the order passed on C.P., dated 9.10.97, writ petition was registered and order passed on CP is not challenged and wherefore, the writ petition is maintainable and the order passed by the learned Single Judge negativing the contention of the appellants counsel is justified and does not warrant interference in this appeal. In support of his contention that abatement does not amount to dismissal of the appeal, he has relied upon the decision in Badrinath Vs Rajaraj AIR 1932 Allahabad 698 wherein the Division Bench of the Allahabad High Court has held that abatement would only amount to suspension of the proceedings before the court as court cannot proceed with the appeal and if a cause is shown by the party for setting aside abatement and condoning the delay, the LRs can be brought on record and proceedings can be taken in the said proceeding and abatement would not amount to dismissal of the proceeding. We have given anxious consideration to the contention of the learned counsel appearing for the parties, scrutinized the averments made in the writ petition and contents of the documents annexed to the writ petition and order passed in C.P.No.7704/91 dated 9.10.97 and the order passed by the learned Single Judge.;