Sri C P Ramesh Kumar Vs Smt Umashree

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NC: 2025:KHC:24378 MFA No. 4341 of 2024

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 4341 OF 2024 (CPC) BETWEEN:

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SRI C.P. RAMESH KUMAR S/O C.M. PUTTASWAMY AGED ABOUT 56 YEARS RESIDING AT NO.1909, 3RD 'F' BLOCK DATTAGAHALLI 3RD STAGE KANAKADASA NAGAR MYSORE-5770 022.

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…APPELLANT

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(BY SRI. Y.R. SADASIVA REDDY, SENIOR ADVOCATE FOR SRI. C. MANJUNATHA, ADVOCATE)

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AND:

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Digitally signed by ANJALI M Location: High Court of Karnataka

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SMT. UMASHREE D/O. LATE MARIYAPPA @CHINNAPPA @CHINNAIAH

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W/O. B.D. CHANDRASHEKAR AGED BOUT 54 YEARS RESIDING AT HUNASAMARANAHALLI YELAHANKA BENGALURU NORTH TALUK BENGALURU-560 065.

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SMT. BHAGYAMMA D/O. LATE MARIYAMMA AND CHINNAPPA @ CHINNAIAH W/O. R. MANJUNATH AGED ABOUT 52 YEARS RESIDING AT NO.50, 22ND CROSS

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NC: 2025:KHC:24378 MFA No. 4341 of 2024

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HC-KAR

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1ST MAIN, MARUTHINAGAR YELAHANKA, BENGALURU -560 060.

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SRI SANTHOSH KUMAR S/O. LATE MARIYAMMA AND CHINNAPPA @ CHINNAIAH

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AGED ABOUT 42 YEARS.

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SMT. NAGAMANI D/O. LATE MARIYAMMA AND CHINNAPPA @ CHINNAIAH AGED ABOUT 44 YEARS

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RESPONDENT NOS.3 AND 4 ARE RESIDING AT 1ST MAIN ROAD NEAR CANARA BANK VARTHURU, BENGALURU-560 087.

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SRI. MURTHY S/O. LATE GOWRAMMA AND PUTTAPPA AGED ABOUT 44 YEARS.

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SRI. SHANKARA S/O. LATE GOWRAMMA AND PUTTAPPA AGED ABOUT 42 YEARS

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RESPONDENT NOS.5 AND 6 ARE RESIDING AT NO.97, 10TH MAIN MANJUNATHANAGARA BENGALURU-560 030.

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SMT. NIRMALA D/O. LATE GOWRAMMA AND PUTTAPPA AGED ABOUT 40 YEARS RESIDING AT MALUR VILLAGE AND POST SIDLAGHATTA TALUK CHIKKABALLAPURA DISTRICT-562 105.

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SMT. MANGALA D/O. LATE GOWRAMMA AND PUTTAPPA AGED ABOUT 38 YEARS RESIDING AT CHANDENAHALLI VILLAGE

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HC-KAR

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POST AND HOBLI DEVANAHALLI TALUK BENGALURU-562 110.

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SRI SRINIVASA S/O. LATE JAYAMMA AND RAMAKRISHNA AGED ABOUT 44 YEARS.

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SMT. PUSHPA D/O. LATE JAYAMMA AND RAMAKRISHNA AGED ABOUT 40 YEARS

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RESPONDENT NOS.9 AND 10 ARE RESIDING AT NO.223/7 7TH MAIN, 3RD CROSS KENGERI UPANAGARA BENGALURU-560 060.

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SMT. NANJAMMA W/O. LATE ANJINAPPA AGED ABOUT 64 YEARS.

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SMT. ANNAMMA D/O. LATE ANJINAPPA W/O. SHANTHAKUMAR AGED ABOUT 44 YEARS RESIDING AT NO.354 BUS STAND ROAD KENGERI, BENGALURU-560 060.

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SRI. KUMAR S/O. LATE ANJINAPPA AGED ABOUT 41 YEARS.

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SRI. SANJEEVAPPA S/O. LATE ANJINAPPA AGED ABOUT 40 YEARS.

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SMT. YELLAMMA D/O. LATE ANJINAPPA AGED ABOUT 39 YEARS

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HC-KAR

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RESPONDENT NOS.11, 13 TO 15 ARE RESIDING AT NO.63, SAWMILL ROAD BEHIND VENKATESHWARA THEATER KENGERI NEW EXTENSION KENGERI BENGALURU-560 060.

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SMT. SHARADAMMA D/O. LATE MUNIYAPPA W/O. MUNIYAPPA AGED ABOUT 68 YEARS RESIDING AT KUMBALAHALLI VILLAGE AND POST BENGALURU.

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SMT. RATHNAMMA D/O. LATE MUNIYAPPA W/O. LAKSHMAIAH AGED ABOUT 66 YEARS RESIDING AT KUMBALAHALLI VILLAGE AND POST BENGALURU-562 114.

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SANJEEVAPPA @ MARIYAPPA S/O. LATE KARIYAPPA AGED ABOUT 64 YEARS SINCE DEAD AND THE RESPONDENTS NO.18 TO 21 ARE THE SONS OF DEFENDANT NO.8 AND THEY ARE THE ONLY LEGAL HEIRS.

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SRI M. SANJEEVAMURTHY S/O. LATE SANJEEVAPPA @ MARIYAPPA AGED ABOUT 50 YEARS.

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SRI M. JAYARAM S/O. LATE SANJEEVAPPA @ MARIYAPPA AGED ABOUT 48 YEARS.

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SRI MUKUNDA

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S/O. LATE SANJEEVAPPA @ MARIYAPPA AGED ABOUT 46 YEARS.

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HC-KAR

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SRI SHANKARAPPA S/O. PILLAPPA AGED ABOUT 62 YEARS.

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SRI S. MUNIRAJU S/O. SHANKARAPPA AGED ABOUT 39 YEARS.

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SRI HEMANTH S/O. SHANKARAPPA AGED ABOUT 36 YEARS.

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MUNIRAJU S/O. PILLAPPA

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AGED ABOUT 59 YEARS.

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SMT. RUKMINI D/O. MUNIRAJU AGED ABOUT 37 YEARS.

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SRI NAGARAJU S/O. MUNIRAJU

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AGED ABOUT 35 YEARS.

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SMT. MARIYAMMA W/O. LATE MUNISANJEEVAPPA AGED ABOUT 82 YEARS.

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SRI NAGARAJA S/O. LATE MUNISANJEEVAPPA AGED ABOUT 50 YEARS

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RESPONDENT NOS.18 TO 28 ARE RESIDING AT KENGERI VILLAGE KENGERI HOBLI BENGALURU SOUTH TALUK BENGALURU-560 060.

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SMT. UMA SHIVAPRASAD W/O. SHIVAPRASAD AGED ABOUT 52 YEARS RESIDING AT NO.1415 8TH 'A MAIN ROAD

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HC-KAR

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HRBR LAYOUT

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II BLOCK, KALYANA NAGAR BENGALURU-560 060.

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MRS. CARMEL PRABHU AGED ABOUT 74 YEARS RESIDING AT KALMANI NO.78 LELLE ROAD BENGALURU-560 001.

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M/S D.A. DEVELOPERS PVT. LTD. REPRESENTED BY ITS DIRECTOR

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SRI. AVINASH PRABHU, NO.11, HAYAS ROAD BENGALURU-560 001.

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…RESPONDENTS

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(BY SRI. K.V. MANJUNATHA, ADVOCATE FOR R-5 TO R-8; R-1 TO R-4, R-9 AND R-10 ARE SERVED, UNREPRESENTED; VIDE ORDER DATED 9-7-2024, NOTICE TO R-11 TO R-31 IS DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(d) OF THE CPC, AGAINST THE ORDER DATED 18-11-2023 PASSED IN MISC NO.25001 OF 2018 ON THE FILE OF THE IV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU, (CCH-21), DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13 R/W SECTION 151 OF CPC.

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THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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NC: 2025:KHC:24378 MFA No. 4341 of 2024

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HC-KAR

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ORAL JUDGMENT

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The appellant/defendant No.20 in

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Misc.No.25001/2018 has filed this appeal under Order XLIII Rule 1(d) of CPC read with Section 104 of CPC with a prayer to call for the records in Misc.No.25001/18 relating to OS.No.25124/2013 on the file of IV Additional City Civil

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and Sessions Judge at Mayohall Unit, Bengaluru (CCH-21)

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and set aside the impugned order dated 18.11.2023 passed in Misc.No.25001/18, by the said Court dismissing the petition of the appellant, filed under Order IX Rule 13 of CPC and set aside the ex-parte judgment and decree passed in OS.No.25124/2013 dated 10.11.2017 by allowing this appeal.

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Parties to this appeal are referred to as per the ranking before the trial Court.

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That the present appellant/defendant No.2 filed a miscellaneous petition in Misc.No.25001/2018 under Order IX Rule 13 of CPC to set aside ex-parte judgment

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and decree passed by the City Civil Court in OS No.25124/2013 dated 10.11.2017 stating that, the respondent Nos.1 to 10 filed OS.No.25124/2013 seeking the relief of partition, declaration and permanent injunction against the petitioner and other respondents Nos.11 to 31. The present appellant was arrayed as defendant No.20 in the said suit. In the said suit, defendant No.20 was placed ex-parte. So also defendant Nos.1 to 13, 5 and 11 were also absent before the Court and they were also treated as ex-parte. The other defendants though appeared but did not contest the said suit. The said suit came to be decreed on 10.11.2017. It is further stated that, the appellant/petitioner came to know about the decree of the suit on 13.11.2017. Thereafter, he requested his counsel to enquire about the same as he has got interest in the schedule property as a GPA holder of respondent Nos.11 to 15 and 18 to 28 and executed the registered sale deed dated 13.04.2005 in favour of respondent No.29. It is stated that, the appellant has got

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NC: 2025:KHC:24378 MFA No. 4341 of 2024

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responsibility to protect the interest of the said

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respondents who are the vendors and purchasers of the suit property.

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It is a specific case of the petitioner before the

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trial Court that, he is a resident of Kengeri, Bengaluru and had informed to one Shivakumar over a phone regarding disposal of the suit. In fact, the said Mr.Shanthakumar, commonly known to the petitioner as well as respondent Nos.1 to 10. It is further stated that no suit summons were served upon the appellant/petitioner. Even it is stated that, there was a paper publication, but he was placed ex-parte as he did not appear before the Court as he was not knowing about the said suit.

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It is further stated that, the said paper

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publication was taken by the plaintiff therein behind the back of the petitioner. Petitioner is a permanent resident

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of Mysore. But the wrong address was given. Thus, it is stated that, as the plaintiff in the said suit has obtained

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the ex-parte decree, now the petitioner/appellant is constrained to file the petition for setting aside the same.

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Before the trial Court respondent Nos. 1 to 10, 16 and 17 have appeared through their counsel. Respondent Nos.1 to 10 have filed the objections and respondent Nos. 16 and 17 have adopted the same.

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Inter alia, the aforesaid respondents have denied the entire contents of the petition. It is contented that, the present defendant No.20 has no locus standi to file the petition. It is stated that, the petitioner and respondent No.29, the purchaser and her husband are closely associated with each other and they have full knowledge about the civil proceedings against them. In spite of that, they remained absent before the Court to harass the present respondents. The respondent No.20 has already filed an appeal before this Court. In addition

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to that, the plaintiff's husband, Mr. Shivaprasad, instigated the petitioner to file the false and frivolous petition.

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Therefore, it is prayed by the respondents to dismiss the petition.

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Before the Trial Court, to substantiate the assertions made by the petitioner, one C.P.Ramesh Kumar entered the witness box as PW1 i.e., a petitioner and one PW2 C.M.Shantha Kumar was examined as PW2. On behalf

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of the petitioner, Ex.P1 to Ex.P3 were marked. The records placed on record by the appellant/petitioner shows that, PW1 and PW2 were not cross-examined by the respondents though they have filed the objections. They have not lead any evidence on their behalf. The learned trial Court has dismissed the said petition filed by the petitioner. This is how, now the petitioner is before this Court by preferring this appeal.

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The petition was filed by the petitioner under Order IX Rule 13 read with Section 151 of CPC. The provisions of Order IX Rule 13 of CPC reads as under:

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"13. Setting aside decree ex parte against defendants -In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by

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which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

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Provided that whether the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside against all or any of the defendants also."

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Thus, the scope of Order IX Rule 13 of CPC is that, if the petitioner satisfies the Court that, the summons was not only served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment or otherwise as if things fit and shall appoint a day for proceeding.

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In this case, the main objections of the

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petitioner in the petition, as well as before this Court in the appeal is that, suit summons were not at all served on

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the appellant/defendant No.29. Though paper publication

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was taken by the plaintiff therein in OS No.25124/2013, it

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was taken on a wrong address. Behind the back of the petitioner, the decree was obtained by the plaintiff on 10.11.2017 which is a ex-parte decree. These assertions

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so made by the petitioner are reiterated by PW1 and PW2 in their respective evidence. The contesting respondents have not at all challenged the said evidence of PW1 and PW2 by cross examining them. That means whatever the examining chief stated by PW1 and PW2 have been remained as it is without any rebuttal in the cross examination. Though the contesting respondents filed the objections before the trial Court, they have failed to rebut

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the evidence spoken to by PW1, PW2. PW1 is specific in his evidence that, no suit summons was served on him. So also there is no proper paper publication taken by the plaintiff in OS.No.25124/2013. These facts so stated are

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not challenged by the respondents by cross- examining PW1 and PW2. However the trial Court while passing the impugned orders in the page 15 at para 17 has strangely

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stated that, "I am of the opinion that, the moment when he executes the sale deed in favour of defendant No.21 as Power of Attorney Holder, the authority given to him under the said Power of Attorney comes to an end and he has lost all his rights and liabilities, so the judgment and decree passed will not affect in any way and he will not suffer from the said judgment."

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This observation of the trial Court in the course of the order is unknown to the procedures so stated in Order IX Rule 13 of CPC. While deciding the application for setting aside the ex-parte decree, the Court is not expected to decide the lis on merits. If the petitioner satisfies the ingredients of Order IX Rule 13 of CPC, that would be sufficient. In this case, the petitioner is specific that, no suit summons was served and even paper publication is wrongly published by the plaintiff therein. That is the sufficient ground to set aside the ex-parte decree. Instead of that, the trial Court ventured upon to give its finding on merits which is not warranted. The

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respondents have not challenged the evidence of PW1 and

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PW2 and have not substantiated their objections by leading evidence.

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In view of the grounds urged in the appeal

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memo and law with regard to setting aside ex-parte decree, the petitioner has made out grounds to allow this appeal and set aside the impugned order. Accordingly, I pass the following:

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ORDER

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