MALLIKARJUN Vs. NAZHAT SHAHEEN AND ORS.

JUDGEMENT

(1.) O .S. No. 140/2001 filed by the respondent was decreed on 14.07.2008 by the Civil Judge (Jr. Dn.) Shorapur. The appellant was restrained for making any construction over the suit 'AB' way or dumping any waste in 'CD' way property. That apart, he was directed to demolish the construction made to the east of his house, covered with tin shed and clear the public way within 30 days of the order. Assailing the said decree, defendant/appellant filed R.A. No. 73/2009 in the Court of Senior Civil Judge at Yadgir. The appeal having been dismissed by the judgment and decree dated 02.09.2010, this appeal was filed.

(2.) THE Appellate Judge has held that the case stated in I.A. 1 filed seeking condonation of delay in filing the appeal cannot be believed and that sufficient cause for condonation of delay having not been shown, I.A. 1 is liable to be dismissed. He has also dismissed the appeal on merit.

(3.) WHETHER the objection was filed or not i.e., to I.A. 1, before the Court below, is not forthcoming from the impugned order. Without considering whether the facts stated in I.A. 1 constitute sufficient cause for condonation of delay, I.A. 1 has been dismissed. In case I.A. 1 filed for condonation of delay had been opposed, the Court below ought to have recorded the evidence on I.A. 1 and thereafter, decided the matter. There is procedural impropriety in dismissing I.A. 1 in not providing an opportunity of hearing the applicant to adduce evidence. Thus there is miscarriage of justice.