THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE G. V. SEETHAPATHY WRIT PETITION No.4463 of 2010 ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) By means of filing this writ petition under Article 226 of the Constitution of India, the petitioner invoked the Certiorari jurisdiction of this Court for calling up records and quashing the order dated 01.06.2009 passed by the Special Court under the A.P. Land Grabbing (Prohibition) Act, Hyderabad, in L.G.A.S.R.No.3699 of 2008 and for setting aside the same. The petitioner filed L.G.O.P.No.307 of 1991 on the file of the Land Grabbing (Prohibition) Tribunal-cum-District Judge, Krishna, Machilipatnam against respondents 1 to 8 herein under Section 8 of the Andhra Pradesh Land Grabbing (Prohibition) Act (for short ‘the Act’) seeking to declare the respondents as land grabbers and to direct the respondents to surrender the petition schedule property to the petitioners. When the said O.P. was coming up for enquiry, it was dismissed for default on 18.03.1997 for the absence of the petitioners and their counsel. Thereafter, the petitioners filed I.A.No.598 of 1997 under Order 9 Rule 9 C.P.C. seeking to set aside the dismissal order dated 18.03.1997 in the said L.G.O.P. The notices sent to respondents 2 and 4 in the above I.A., were returned un-served as the said respondents died. Since then the matter was posted for taking steps against respondents 2 and 4. While so, on 5.12.2001 the advocate for the petitioner filed a memo stating that respondents 1 and 3 also died. On 10.06.2003 the petitioners filed another memo stating that respondents 1, 2, 4 and 5 died and that respondent No.3 is alive. Since then, the petition underwent several adjournments for taking steps against respondents 1, 2, 4 and 5. The petitioners filed I.A.Nos.194, 195, 196 and 197 of 2003 in I.A.No.598 of 1997 to condone the delay of 2545 days, 501 days, 1880 days and 316 days respectively in filing the applications to bring the legal representatives of the deceased respondents 1, 2, 4 and 5. The learned District Judge by separate orders dated 13.09.2005 dismissed all the I.As filed for condoning the delay in bringing the legal representatives of the deceased respondents 1, 2, 4 and 5. In effect, the L.G.O.P. has not been restored against the deceased respondents or their legal representatives. On dismissal of L.G.O.P. by order dated 18.06.2008, the petitioners filed L.G.A.S.R.No.3699 of 2008 before the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad against all the respondents showing respondents 1, 2, 4, 5 and 7 died and the legal representatives of respondent No.7, who contested L.G.O.P. which was dismissed against him, were shown as respondents 16 to 19 and 9 and 10 respectively. An application under Order 1 Rule 10(2) C.P.C., was filed along with LGASR to implead respondents 16 to 19 as legal representatives of deceased respondents 1, 2, 4 and 5. On office raising certain objections, the matter was called on bench by the Special Court, and by the impugned order dated 1.06.2009 confined the appeal to the order of the lower Court insofar as it related to respondents 6 to 8 in L.G.O.P. only, and the names of other respondents have been ordered to be deleted. Insofar as abatement order is concerned the Special Court granted liberty to the petitioners to take steps as are open to them under law. However, it was observed that the petitioners can file a separate appeal against the abatement order, if they are aggrieved, but they cannot file a single appeal against the decree passed against respondent No.7 on contest, as also the abatement order made in respect of respondents 1 to 5. Questioning the correctness of the same, the present writ petition is filed. Learned counsel for the petitioner contends that under Order 22 Rule 4 C.P.C., the Court has ample power to exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant, who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing. Therefore, Order 22 Rule 4 can be made applicable to the appeals also. To substantiate his contention, reliance was placed on Nepal Chandra v. Regati Mohan[1]; Yog Raj v. Yogeshwar Raj[2]; and on Mohammed Mustaqeem v. Aftab Ahmad[3]. As rightly held by the learned Special Court the facts in the said judgments have misplaced to the facts in the present case, for the reason that L.G.O.P., was initially dismissed against all the respondents for default. To restore the same, I.A.No.598 of 1997 was filed in which notices were ordered to the respondents. On return of notices with an endorsement “respondents 1, 2, 4 and 5 died”, to condone the delay in filing the application to bring the legal representatives of the deceased respondents on record I.A.Nos.194, 195, 196 and 197 of 2003 were filed in which notices were ordered to the legal representatives and on contest by respondent No.7, the said I.As were dismissed and the said order has become final. In view of the same, we do not see any force in the contention of the learned counsel for the petitioners that L.G.O.P. dismissed against respondents 1, 2, 4 and 5 as has been abated, which in fact was initially dismissed for default against them, and the restoration petition in I.A.No.598 of 1997 filed for restoring L.G.O.P., has been restored against respondents 6 to 8 and has not been restored against them or their legal representatives, in view of dismissal of I.A.Nos.194, 195, 196 and 197 of 2003 filed for condoning the delay in filing the application to bring the legal representative of the deceased respondents. So far as the legal representatives of respondent No.7, who are shown as respondents 9 and 10 in L.G.A.S.R are concerned, it is open for the petitioners to take steps to bring the legal representatives of respondent No.7 on record as per Order 22 Rule 6 C.P.C., on petitioners establishing that respondent No.7 died after the conclusion of hearing and before pronouncement of judgment. In view of the aforesaid conclusions reached by us, no infirmity or illegality is discernible in the impugned order passed by the lower Court warranting correction in exercise of Certiorari jurisdiction of this Court under Article 226 of the Constitution of India, except granting liberty to the petitioner to take steps to bring on record legal representatives of respondent No.7 as aforementioned. The Writ Petition is accordingly dismissed. There shall be no order as to costs. ___________________ (A.GOPAL REDDY, J.) _________________ (G. V. SEETHAPATHY, J.) 8th April, 2010 Js. [1] AIR 1979 GAUHATI 1 [2] AIR 1982 DELHI 62 [3] AIR 1983 ALLAHABAD 365