Mrs Keerthi Vs Mr Kushal Raj Ostwal

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NC: 2025:KHC:36983 MFA No. 6257 of 2025

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF SEPTEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.6257 OF 2025 (CPC) BETWEEN:

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MRS. KEERTHI WIFE OF MR. V. VINOD KUMAR, AGED ABOUT 40 YEARS, RESIDING AT NO.30, 3^RD CROSS, VICTORIA LAYOUT, BENGALURU - 560 047. &APPELLANT (BY SRI. VASANTH VINCENT FERNANDES, ADVOCATE) AND:

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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MR. KUSHAL RAJ OSTWAL SON OF MR. BHAWARLAL OSTWAL, AGED ABOUT 42 YEARS, RESIDING AT NO. 88, 2^ND CROSS, BEHIND INDIA GARAGE, VICTORIA LAYOUT, VIVEK NAGAR, BENGALURU - 560 047. &RESPONDENT (BY SRI. M. MOHAN KUMAR, ADVOCATE)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF THE CPC, AGAINST THE ORDER DATED 24.07.2025 PASSED IN MISC.NO.377/2021 ON THE FILE OF THE XXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, CHH NO.23, BENGALURU, DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC.

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

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NC: 2025:KHC:36983 MFA No. 6257 of 2025

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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Though the appeal is listed for admission, with consent of both the learned counsel appearing for the parties, the matter is taken up for final disposal.

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This appeal is filed by the defendant in the suit in O.S.No.6171/2019 and the petitioner in Misc. Petition No.377/2021 challenging the order dated 24.07.2025 passed in Misc. No.377/2021 on the file of XXV Additional City Civil and Sessions Judge (CCH-23)¹ decreeing the suit in part in O.S.No.6171/2019.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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The respondent/plaintiff has filed a suit in O.S.No.6171/2019 against the appellant herein for ejectment. The Trial Court has decreed the suit and

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1 hereinafter referred to as 8the Trial Court9 for short

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3 - NC: 2025:KHC:36983 MFA No. 6257 of 2025

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HC-KAR

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directed the appellant/defendant to handover vacant possession of the suit schedule property and also directed the appellant/defendant to pay Rs.4,62,821/- towards arrears of rent.

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Being aggrieved by the said order directing payment of arrears of rent amount, the

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appellant/defendant has preferred Misc. Petition under Order IX Rule 13 of CPC, praying to set aside the exparte judgment and decree passed in the suit on the ground that in the suit, the appellant/defendant was not issued summons; therefore, the defendant did not know the proceedings before the Trial Court. Hence, filed Misc. Petition, but the Trial Court dismissed the Misc. Petition on the reason that the respondent/plaintiff has issued legal notice to the defendant on the current address, which is given by the defendant in the suit. Also, in the order sheet maintained in the suit, it is endorsed that suit summons have been served. Therefore, the Trial Court observed that

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NC: 2025:KHC:36983 MFA No. 6257 of 2025

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HC-KAR

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there is a presumption of serving summons on the defendant. Hence, dismissed the Misc. Petition.

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The Trial Court in the suit has observed that the summons have been served on the defendant and in spite of it, the defendant has not appeared. Therefore, an exparte judgment and decree is passed.

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Upon perusing the order sheet maintained in the suit, no doubt there is an endorsement in the order sheet at the left-hand side by the concerned official to maintain the record that the summons have been served, but there is no summons on record for perusal before the Court whether, the summons were duly served or not, whatever endorsement made in the in the order sheet are only endorsement regarding summons.

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When it is disputed by the defendant that the

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summons have not been served on defendant, then there is a need to look into the positive evidence. When the defendant has entered into witness box in Misc. Petition by

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HC-KAR

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deposing that summons have not been served on the defendant and to rebut the said evidence, there must be positive evidence before the Court for perusal that summons have been served, but in the records maintained in the suit, there is no summons found that the defendant was served with summons.

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Though there may be a contention on the part of the plaintiff that before instituting the suit, legality to issue notice to the correct address of the defendant and the defendant has also filed Misc. Petition by stating the very same address, then whether there could it be presumed that the summons have been served on the address of the defendant. Whatever may be the presumption, but that cannot attain the characteristic as evidence. Presumption may be in so many factors, but the facts have to be proved on evidence. However, in the present case, except there is an endorsement by the official of the Court maintaining the record, there is no other evidence regarding serving summons to the

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HC-KAR

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defendant. Hence, the appellant/defendant has made out sufficient grounds to set aside the order passed in Misc. Petition and also exparte judgment and decree passed in the suit by the Trial Court. Therefore, the appeal is liable to be allowed.

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In the result, I proceed to pass the following:

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ORDER

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i. The appeal is allowed .

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ii. The exparte judgment and decree dated 25.01.2021 passed in O.S.No.6171/2019 and the order dated 24.07.2025 passed in Misc. Petition No.377/2021 on the file of XXV Additional City Civil and Sessions Judge, Bengaluru-CCH-23, are hereby set aside.

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