IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWELFTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 2641 of 2009 Between: 1 Smt.Raisabee W/o.Late Hameed Resident of H.No.12-13-484, Street No.1, Nagarjunanagar, Tarnaka, Secunderabad. 2 Mohd. Sarvar S/o.Late Hameed Resident of H.No.12-13-484, Street No.1, Nagarjunanagar, Tarnaka, Secunderabad. 3 Mohd. Sikinder S/o.Late Hameed Resident of H.No.12-13-484, Street No.1, Nagarjunanagar, Tarnaka, Secunderabad. 4 Mohd. Akbar S/o.Late Mohd. Khaseem Resident of H.No.12-13-484, Street No.1, Nagarjunanagar, Tarnaka, Secunderabad. 5 Mohd. Rasheed S/o.Late Mohd. Khaseem Resident of H.No.12-13-484, Street No.1, Nagarjunanagar, Tarnaka, Secunderabad. ..... PETITIONER(S) AND Sri Jameel Ahmed Hussain S/o.Late Baquar Hussain Chaman Bunglow -14, Dada Bhai Road, Near Bhavans College, Andheri (W) Mumbai, Maharashtra. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue any appropriate Writ, order or direction more particularly one in the nature of a Writ of Certiorari calling for the records relating to I.A.No.1139 of 2008 in L.G.C.No.7 of 2005 dated 7.11.2008 on the file of the Special Court I under the A.P. Land Grabbing (Prohibition) Act, 1982, Hyderabad and set aside the same and consequently permit the Petitioners to adduce evidence in the main L.G.C.7 of 2005 and pass. Counsel for the Petitioner:MR.A.RAMALINGESWARA RAO Counsel for the Respondent No.: . The Court made the following : THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.2641 of 2009 ORDER: (per the Hon’ble Sri Justice Vilas V. Afzulpurkar) Petitioners question the order of the Special Court I under the A.P.Land Grabbing (Prohibition) Act, 1982 (for short “the Special Court”), in I.A.No.1139 of 2008 in L.G.C.No.7 of 2005, dated 07-11-2008. The brief facts are that the respondent herein filed the aforesaid L.G.C. claiming that he is the owner of the property to the extent of 1859 sq. yards in the L.G.C. schedule property. The petitioners herein filed a counter asserting that there is no act of land grabbing, as they relied upon oral gift said to have been executed in favour of one Hameed and his two brothers and contended that the respondent herein is denying the oral gift and subsequent documents. While the said L.G.C. was being contested and posted to 09-09- 2008 for further evidence of the petitioners herein, their counsel could not attend the court and as there was no representation on behalf of the petitioners, the Special Court closed the petitioner’s evidence. Thereupon, the petitioners filed I.A.No.1139 of 2008 to reopen the evidence of the petitioners by setting aside the order, dated 09-09-2008. The said application was allowed by the Special Court on 21-10-2008 on payment of costs of Rs.500/- and filing of the affidavit evidence on behalf of the petitioners by 07- 11-2008. The petitioners paid the said costs, but as the deponent of the affidavit i.e., the petitioner herein was not available, the affidavit evidence could not be filed. Consequently, for non-compliance of part of the said condition of filing affidavit evidence, the Special Court dismissed the I.A.No.1139 of 2008 by the impugned order, dated 07-11-2008, and posted the L.G.C. for arguments to 29-01-2009 and subsequently adjourned to 12- 02-2009. Aggrieved by the order, dated 07-11-2008, in I.A.No.1139 of 20908, the petitioners approached this court by way of this writ petition. While ordering notice, we have granted interim stay on 12-02-2009. Notices in the writ petition have since been served on the respondent herein as well as on his counsel appearing before the Special Court by registered post with acknowledgment due on 16-02-2009, vide proof of service is filed in this court, and as there is no appearance on behalf of the respondent, though the matter is listed today showing the name of the respondent in the cause- list, we are therefore of the considered opinion that the writ petition deserves to be disposed of on merits. It is true that I.A.No.1139 of 2008 was allowed by the Special Court subject to payment of costs of Rs.500/- and filing of the affidavit evidence on behalf of the petitioners by 07-11-2008. It is to be noted that as the petitioners showed sufficient cause for their non-appearance, on the date on which their evidence was closed i.e., on 9.9.2009, time was extended by the Special Court by allowing the present I.A.No.1139 of 2008, by imposing the above said two conditions. There is no dispute that the petitioners complied with the first condition, but as the deponent of the affidavit was not available, the second condition was not complied with. Though there is default committed by the petitioners in filing affidavit evidence, the powers of the Court under Section 148 CPC for enlargement of time could have been exercised by the Special Court in the interest of justice. In view of the fact that there is no contest in this writ petition, we felt it appropriate to grant one more opportunity to the petitioners so as to enable them to file affidavit evidence. Accordingly, we grant ten days time from today to the petitioners for filing affidavit evidence. On such compliance, the impugned order of the Special Court, dated 07-11-2008, shall stand set aside and the Special Court shall proceed to hear and determine the L.G.C. in accordance with law. In default, the impugned order stands confirmed. The writ petition is accordingly allowed subject to the above default clause. There shall be no order as to costs. ________________ V.ESWARAIAH, J ________________________ VILAS V. AFZULPURKAR, J Dated: 12-03-2009 Note: Issue C.C. in one week (B/o) Prv ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{KURR}