Allowed

Sri R Y Venkatesh Reddy v. Smt R Y Padma

Karnataka HC1 Mar 2023MFA/781/2023

Case brief

AI extract

What is this about?

The High Court allowed an appeal under Order 43 Rule 1(d) CPC against the rejection of a mercy petition under Order 9 Rule 13 CPC. The court set aside the impugned order and the exparte judgment/decree to provide the appellant an opportunity to contest the suit and filed a written statement within a stipulated timeframe.

What did the court decide?

Impugned order and exparte judgment were set aside; suit restored; parties directed to appear and file written statement on 20th March 2023.

Sri R Y Venkatesh Reddy Vs Smt R Y Padma — Partition | Karnataka HC (2023)

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MFA No. 781 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR MISCELLANEOUS FIRST APPEAL NO. 781 OF 2023 (CPC)

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BETWEEN:

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SRI. R Y VENKATESH REDDY S/O LATE YELLAPPA AGED 57 YEARS R/AT RAMANAYAKANAHALLI VILLAGE GUNJUR POST, SARJAPURA HOBLI ANEKAL TALUK BANGALORE - 560087

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…APPELLANT

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(BY SRI. A MADHUSUDHANA RAO., ADVOCATE)

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AND:

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Digitally signed by JUANITA THEJESWINI Location: HIGH COURT OF KARNATAKA

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SMT R Y PADMA D/O LATE YELLAPPA W/O PAPA REDDY AGED 51 YEARS R/AT NERALUR VILLAGE & POST ATTIBELE HOBLI BANGALORE – 562107

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SMT. JAYAMMA W/O LATE YELLAPPA SINCE DEAD BY LRS I.E. PETITIONER AND RESPONDENTS

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SMT. R Y VENKATALAKSHAMMA

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1. D/O LATE YELLAPPA W/O MUNI REDDY

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MFA No. 781 of 2023

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AGED 61 YEARS R/AT C/O LATE PATEL THIMMA REDDY BOMMASANDRA BOMMASANDRA INDUSTRIAL AREA BANGALORE – 560099

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SMT. R Y SARASWATHAMMA D/O LATE YELLAPPA W/O SRINIVAS REDDY SINCE DEAD BY LRS

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SRI SRINIVAS REDDY S/O LATE MUNI REDDY AGED 69 YEARS

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SRI SATHISH KUMAR S/O SRINIVAS REDDY AGED 39 YEARS

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RESPONDENTS 3 AND 4 ARE R/AT HULIMANGALA HOSKOTE VILLAGE HULIMANGALA POST LAKKUR HOBLI MALUR TALUK KOLAR DISTRICT – 563160

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SMT. SAVITHA W/O NARAYANA REDDY AGED 42 YEARS R/AT MUTTHAGATTI VILLAGE BESTHAMANAHALLI POST KASABA HOBLI, ANEKAL DISTRICT BENGALURU URBAN DISTRICT

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SMT. BHAGYA W/O PILLA REDDY AGED 37 YEARS R/AT KUMBARANAHALLI VILLAGE HARAGADDE POST, KASABA HOBLI ANEKAL TALUK BANGALORE – 560105

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3 - MFA No. 781 of 2023

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SRI RAMASWAMY REDDY S/O LATE NALLAPPANAVARA YELLAREDDY AGED 61 YEARS

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SRI R RAGHUNATH S/O RAMASWAMY REDDY AGED 37 YEARS

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RESPONDENTS NO. 7 AND 8 ARE R/AT BILLAPURA VILLAGE BIDARAGUPPE POST SARJAPURA HOBLI ANEKAL TALUK BANGALORE – 560034

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SMT. R SHILPA D/O RAMASWAMY REDDY W/O MURALI AGED 34 YEARS R/AT 534, 1^ST MAIN, TEACHERS COLONY, KORAMANGALA POST BANGALORE – 560034

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SRI. R Y NANJUNDA REDDY S/O LATE YELLAPPA AGED 46 YEARS R/AT RAMANAYAKANAHALLI VILLAGE GUNJUR POST, SARJAPURA HOBLI ANEKAL TALUK BANGALORE URBAN DISTRICT

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SMT. R Y LALITHA D/O LATE YELLAPPA W/O MUNIRAJU AGED 43 YEARS R/AT KUMBARANAHALLI VILLAGE HARAGADDE POST

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MFA No. 781 of 2023

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KASABA HOBLI ANEKAL TALUK BANGALORE URBAN DISTRICT

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…RESPONDENTS

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(BY SRI. K.K. VASANTH, ADVOCATE FOR C/R1)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF CPC AGAINST THE ORDER DT.12.01.2023 PASSED IN MISC. CASE NO.31/2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ANEKAL, DISMISSING THE PETITION FILED U/O.9 RULE 13 OF THE CPC.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the impugned order dated 12.01.2023 passed in Miscellaneous Petition No.31/2010 by the II Additional Senior Civil Judge & JMFC, Anekal, whereby the said petition filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure, seeking setting aside of the exparte judgment and decree dated 09.09.2010 passed in O.S.No.607/2009 on the file of Senior Civil Judge and JMFC, Anekal, was rejected by the Trial Court.

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Heard learned Counsel for the appellant and learned Counsel for respondent No.1-caveator and perused the material on

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MFA No. 781 of 2023

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record. In the order proposed, notice to remaining respondents is dispensed with.

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The material on record discloses respondent No.1-plaintiff instituted the suit in O.S.No.607/2009 for partition and separate possession of alleged share in the suit schedule immovable properties and for other reliefs. In the said suit, the appellant was arrayed as defendant No.4 and the remaining respondents were arrayed as the remaining defendants. Insofar as the appellantdefendant No.4 was concerned, he was placed exparte by the Trial Court in the suit on the ground that summons was refused by him. In this context, it is the specific contention of the appellant that summons were actually never served upon the appellant and as such, the question of the appellant refusing service of summons upon him did not arise in the facts of the instant case. In view of the appellant as well as the other defendants having been placed exparte and not contesting the suit, the Trial court proceeded to pass the judgment and decree dated 09.09.2010 decreeing the suit in favour of respondent No.1-plaintiff. Subsequently, the appellantdefendant No.4 filed the instant Miscellaneous Petition No.31/2010 under Order IX Rule 13 of the Code of Civil Procedure, seeking

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MFA No. 781 of 2023

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setting aside of the exparte judgment and decree insofar as the appellant was concerned. The said petition having been opposed by respondent No.1-plaintiff, the Trial Court proceeded to pass the impugned order rejecting the said Miscellaneous Petition, aggrieved by which the appellant is before this Court by way of the present appeal.

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A perusal of the material on record including the impugned order will indicate that the Trial Court has failed to consider and appreciate that having regard to the nature of the suit, relationship between the parties and the properties involved in the suit, it was necessary to adopt a justice oriented approach and provide one more opportunity to the appellant to contest the suit by filing his written statement opposing the claim of respondent No.1-plaintiff. However, the Trial Court has adopted a hyper-technical approach and has come to the erroneous conclusion that the appellant had not made out sufficient cause in not appearing before the Trial Court by refusing receipt of suit summons.

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Under these circumstances, in view of the specific assertion on the part of the appellant that he did not appear before the Trial Court in the suit and contest the same due to bona fide

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MFA No. 781 of 2023

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reasons, unavoidable circumstances and sufficient cause, I deem it just and appropriate to set aside the impugned order and exparte judgment and decree for the purpose of providing one more opportunity in favour of appellant-defendant No.4 to contest the suit within a stipulated timeframe.

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In the result, I pass the following:

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ORDER

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(i) The appeal is hereby allowed.

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(ii) The impugned order dated 12.01.2023 passed in Miscellaneous Case No.31/2010 by the II Additional Senior Civil Judge and JMFC, Anekal, is hereby set aside.

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(iii) Consequently, the judgment and decree dated 09.09.2010 passed in O.S.No.607/2009 on the file of Senior Civil Judge and JMFC, Anekal, is hereby set aside and the said suit is restored to the file of the trial court.

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(iv) The appellant and respondent No.1 undertake to appear before the Trial Court in O.S.No.607/2009 on 20^th March 2023 without awaiting further notice from the trial court.

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MFA No. 781 of 2023

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(v) The appellant is directed to file written statement on 20.03.2023 before the trial Court without seeking any adjournment under any circumstances whatsoever.

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(vi) Immediately upon the appellant filing the written statement, the Trial Court is directed to frame issues and proceed further in the matter and dispose of the suit within a period of six months from 20.03.2023.

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(vii) It is further directed that till disposal of the suit by the Trial Court, all parties are directed to maintain statusquo in all respects as on today in relation to the suit schedule properties.

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All rival contentions on all aspects of the matter are kept

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open and no opinion is expressed on the same.

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Sd/JUDGE

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JT/-

Sri R Y Venkatesh Reddy v. Smt R Y Padma

Case brief

What is this about?

What did the court decide?

Sri R Y Venkatesh Reddy v. Smt R Y Padma

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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