Dismissed¶86

Sri Nanjundaiah S v. Smt Ramakka

Karnataka HC8 Jul 2025MFA/7361/2018

Case brief

AI extract

What is this about?

Ex-parte decree; maintainability of application under Order IX Rule 13 CPC; decree on plaintiff's evidence alone versus decree on merits; appeal under Order 43 Rule 1(d) CPC not required; sufficient cause and written statement default; litigant's negligence and diligence (Vigilantibus non dormientibus jura subveniunt); reliance on AIR 1997 Kar 339 (Ansari Sakeenabi); Karnataka High Court, Bengaluru, 08.07.2025; Nanjundaiah S v. Ramakka and Thimmaiah; MFA No. 7361 of 2018; O.S.No.25692/2007; Misc.No.25233/2011.

What did the court decide?

None; the appeal was dismissed, the order dated 30.06.2018 in Misc.No.25233/2011 was confirmed, and there were no orders as to cost. ¶86

Sri Nanjundaiah S Vs Smt Ramakka — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

None; the appeal was dismissed, the order dated 30.06.2018 in Misc.No.25233/2011 was confirmed, and there were no orders as to cost.

¶86

Issue for consideration

Whether the Miscellaneous Petition under Order IX Rule 13 CPC to set aside the decree in O.S.No.25692/2007 was maintainable, given the trial Court's position that the appellant ought to have invoked Order XLIII Rule 1(d) CPC by preferring an appeal. +1 more

¶40

Court's answer

The application to set aside the decree under Order IX Rule 13 CPC is maintainable, since a decree passed disposing of the suit on the plaintiff's evidence alone, due to the defendant's non-appearance at subsequent stages and failure to lead evidence, is an ex-parte decree and not a decree on merits.

¶57

Ratio / Principle

The trial Court's observation that the appellant ought to have preferred an appeal under Order 43 Rule 1(d) CPC has no merit.

¶58

Key takeaways

On merits, the appellant, though aware of the proceedings and in continuous contact with his counsel, made no effort to file the written statement; his admissions in cross-examination falsified his plea of lack of information from counsel, and neither the petition nor the appeal sets out cogent and acceptable grounds to set aside the ex-parte judgment.ratio¶76
Stated in passing: civil courts come to the rescue of the diligent litigant and not the slothful (Vigilantibus non dormientibus jura subveniunt).obiter¶76
No factual or legal error was committed by the trial Court in dismissing the petition; the appeal has no merit, is liable to be dismissed, and the impugned order challenged in the appeal is confirmed.

Detailed headnote1 paragraphs

Miscellaneous First Appeal (under Order 43 Rule 1(d) CPC) by defendant No.2 in O.S.No.25692/2007 against the order dated 30.06.2018 of the XIII Additional City Civil and Sessions Judge, Bengaluru (CCH-22), dismissing his Miscellaneous Petition No.25233/2011 under Order 9 Rule 13 r/w Section 151 CPC seeking setting aside of the ex-parte decree dated 01.02.2010. Held, relying on Smt. Ansari Sakeenabi v. Maligi Moideensab, AIR 1997 Kar 339, that a decree passed on the plaintiff's evidence alone due to the defendant's non-appearance at subsequent stages is an ex-parte decree and not one on merits, so the Order 9 Rule 13 petition was maintainable and the trial Court's observation directing recourse to an appeal under Order 43 Rule 1(d) CPC had no merit. On merits, however, the appellant, an M.A. graduate and retired college principal, had engaged counsel and filed vakalath on 23.07.2007, remained in telephone contact with his advocate, yet filed no written statement and did not examine the advocate; his cross-examination admissions falsified his plea of want of information, and no sufficient cause preventing him from appearing and pleading was shown. Appeal dismissed; impugned order confirmed; no orders as to cost.

¶1

¶2

NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶3

HC-KAR

¶4

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF JULY, 2025

¶5

BEFORE

¶6

THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 7361 OF 2018 (CPC) BETWEEN:

¶7

SRI. NANJUNDAIAH S S/O LATE G. SHIVANANJAPPA AGED ABOUT 70 YEARS NO.5, 9^TH 'K' MAIN VIJAYANAGAR II STAGE BANGALORE - 560 040

¶8

…APPELLANT

¶9

(BY SRI. SRINIVAS N, ADVOCATE)

¶10

AND:

¶11

SMT. RAMAKKA W/O LATE ARASAIAH AGED ABOUT 81 YEARS

¶12

Digitally signed by ANJALI M Location: High Court of Karnataka

¶13

SRI. THIMMAIAH S/O LATE ARASAIAH AGED ABOUT 56 YEARS

¶14

BOTH ARE RESIDING AT K.G. LAKENAHALLI GIDDAKONNENAHALLI YESHWANTHAPURA HOBLI BANGALORE NORTH TALUK-560 022

¶15

…RESPONDENTS

¶16

(BY SRI. MOHAN KUMAR M, ADVOCATE FOR C/R1 & R2)

¶17

THIS MFA IS FILED U/O 43 RULE 1(d) OF CPC, AGAINST THE ORDER DATED:30.06.2018 PASSED IN MISC.

¶18

2 - NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶19

HC-KAR

¶20

NO.25233/2011 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, [CCH-22], DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13 R/W SEC.151 OF CPC.

¶21

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

¶22

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

¶23

ORAL JUDGMENT

¶24

Appellant/defendant No.2 in O.S.No. 25692/2007, on the file of XIII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bangalore (CCH-22), being aggrieved and dissatisfied by the order dated 30.06.2018 passed in Misc.No.25233/2011 by the said Court, has preferred the appeal.

¶25

It is the case of the appellant that, he being defendant No. 2 has suffered ex-parte decree in O.S.No.25692/2007 on the file of the XIII Additional City Civil and Sessions Judge, Mayo Hall, Bangalore (CCH-22). It is his case that, the respondents filed a suit in O.S.No.25692/2007 on the file of the said Court seeking

¶26

3 - NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶27

HC-KAR

¶28

the relief of a permanent injunction against the present appellant and another respondent in respect of one Acre four Guntas of land situated in Survey No. 48, old Survey No. 38/2 of Gidadakkonenahalli Village, Yeshwanthapura Hobli, Bangalore North Taluk, bounded by the boundaries mentioned in the schedule.

¶29

It is the case of the appellant that, he engaged the service of an advocate and filed vakalath before the Court on 23.07.2007 and the case was posted for filing written statement. The Court has passed an order that written statement and objections were not filed by this appellant/defendant No. 2. It is the specific assertion in the petition that, his counsel has not informed him regarding the proceedings. The respondent filed affidavit evidence on 09.03.2009 and subsequently the suit was decreed on 01.02.2010. It is further stated that, a nonfiling of the written statement and objections was neither intentional nor deliberate. Therefore, it is prayed that, if

¶30

¶31

NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶32

HC-KAR

¶33

the petition is not allowed, it will be put to great hardship and irreparable injury and prays to allow the petition.

¶34

Before the trial Court, respondents appeared

¶35

and resisted the petition by filing detailed objection statement. The whole allegations and assertions made in the petition are denied by the respondents. It is contended that, the petitioner has not assigned valid reasons for his absence before the trial Court in the said suit and also no reasons are assigned for not filing the written statement in time. As the suit summons was duly served on the appellant/defendant No.2, he appeared before the Court and engaged a counsel. It was his duty to file the written statement /objections. It is contented that despite giving sufficient opportunity to the petitioner, he has failed to file written statement. Therefore, the suit proceeded and ultimately decreed by the trial Court. Now defendant No.2 cannot contend that, there are bonafide reasons for his absence. Therefore, it is prayed by the respondent before the trial Court to dismiss the petition.

¶36

5 - NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶37

HC-KAR

¶38

Before the trial Court, to substantiate the

¶39

assertions made in the application, he himself entered the witness box as PW1, got marked Exs.P1 and P2 and closed the petitioner's evidence. To rebut the evidence of the petitioner, respondent No. 2, Thimmaiah, i.e., a plaintiff in the said suit, appeared before the trial Court and examined as RW1, got marked Ex. R1 and closed respondent's evidence.

¶40

The Learned trial Court on hearing the arguments and on evaluation of the evidence has held that, the appellant ought to have invoked the provisions of Order XLIII Rule 1 (d) of CPC by preferring appeal challenging the said judgment. There is no proper explanation offered by the petitioner to set aside the ex-

¶41

parte judgment and hence ultimately by observing so dismissed the petition filed by the petitioner.

¶42

This is how, now the petitioner is before this Court challenging the impugned order of dismissal of his

¶43

¶44

NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶45

HC-KAR

¶46

Miscellaneous Petition filed under Order IX Rule 13 read with Section 151 of CPC.

¶47

The learned counsel for the appellant/defendant No.2 would submit that, though the appellant has engaged the counsel and filed vakalat before the trial Court, but as his counsel has not informed about the subsequent proceedings, therefore there was no occasion for the appellant to file the written statement to the said O.S.No. 25692/2007, filed by the respondents seeking injunction in suit schedule property mentioned in the schedule. He further submits that, because of lack of information being furnished by the counsel, he could not file written statement. In the meantime, the learned trial Court has passed an order as the objection is not filed and proceeded further and ultimately, the suit was decreed on 01.02.2010. After coming to know about the said fact, he has filed the petition seeking setting aside of the ex-parte decree by filing the Miscellaneous Petition before the trial Court.

¶48

¶49

NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶50

HC-KAR

¶51

The observation of the trial Court is that, the

¶52

appellant ought to have filed appeal before the Appellate

¶53

Court by invoking Order IX Rule 13 of CPC. But the co-ordinate bench of this court in SMT. ANSARI

¶54

SAKEENABI V. MALIGI MOIDEENSAB AND OTHERS reported in AIR 1997 KAR 339 has categorically held that " When a decree passed by the trial Court disposing of the suit on the basis of the plaintiff's evidence only due to non-appearance of the defendant at subsequent stages in

¶55

the suit and on his failure to lead his evidence, is an ex-

¶56

parte decree against him and not a decree on merits".

¶57

Therefore, it is held that, application to set aside such a decree under Order IX Rule 13 of CPC is maintainable. In view of the principle laid down in the said Judgment which still hold the field, the application so filed by the petitioner is held maintainable by setting aside the ex-parte decree.

¶58

Therefore, the observation of the trial Court that, the appellant ought to have preferred appeal under Order 43 Rule 1(d) of CPC has no merit.

¶59

8 - NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶60

HC-KAR

¶61

Coming to the merits of this case now, it is the admitted fact by the appellant that, on issuance of the suit summons in O.S.No.25692/2007, he appeared before the Court by engaging a counsel. His advocate filed vakalath before the said Court in the said suit. Subsequently he has not appeared. The only reason assigned by the appellant is that, his advocate has not informed him about the subsequent dates of the said suit. In the said Miscellaneous Petition, the present petitioner entered the witness box as PW1 and spoken in line with the contents of the petition averments. He is specific in his examination-in-chief that, because of lack of information furnished by his counsel, he could not appear before the said Court in the said suit and in the meantime the Court ordered that objections or written statements are not filed. Proceeded further and passed the judgment.

¶62

PW1 was cross-examined by the counsel for the respondents therein. In the cross-examination, he has stated that, he is an M.A. Graduate in Kannada. He was

¶63

¶64

NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶65

HC-KAR

¶66

the Principal of Bapuji College, retired in the year 2006. Further he states that, at the time of filing the suit by respondents, he was in his house. In O.S.No. 25692/2007, he engaged a counsel and also filed vakalath. The said suit was pending before the Court. According to him, his counsel Smt. Annapurna Bevije was engaged by him. His advocate was residing at Hanumanthanagar at the time. He filed a vakalath on 23.07.2007. According to him, he does not know that after filing his vakalath what was the next date. He contacted his advocate through phone and advocate informed that, she will inform. He also enquired with regard to the dates etc. But he deposed ignorance about appearance of this counsel in the said suit on 23.07.2007. He denied other suggestions. According to him, he handed over documents to his counsel to file written statement and his counsel told him to come to the office whenever she called. He used to call his counsel on telephone. To substantiate this stand, his counsel is not

¶67

10 -

¶68

NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶69

HC-KAR

¶70

examined by the petitioner. That means, the

¶71

appellant/PW1, was well aware about the proceedings before the Court. But in spite of that, he has not made any efforts to file a written statement in time. The Court has ordered that, the written statement is not filed. Thereafter, they proceeded to record the evidence of the plaintiff and ultimately defendant has not co-operated the Court and it passed the judgment in O.S.No. 25692/2007.

¶72

On perusal of the contents of the petition and the evidence of PW1 before the Court in Misc.No. 25233/2011 do show that, there are no sufficient reasons assigned or stated by the petitioner/appellant to show that, he was reasonably prevented from appearing before the Court and file written statement to contest the said

¶73

suit. Except the bald say in his evidence, and his admissions in the cross-examination, falsifies the very case of the petitioner that, he has suffered ex-parte decree because of the lack of information furnished to him. When he was in continuous contact with his counsel, may

¶74

11 - NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶75

HC-KAR

¶76

be knowing about the dates of proceedings of the suit in O.S. No.25692/2007, but he has not cared to file written statement to contest the suit. The Court proceeded to pass a judgment. Always Civil Courts come to the rescue of the diligent litigant and not the slumber ( Vigilantibus non dormientibus jura subveniunt ). Here in this case the petitioner/appellant has failed to file written statement and contest the said suit. As there are no cogent and acceptable reasons assigned by the petitioner in the petition to set aside the ex-parte judgment, even in this appeal also, no specific grounds have been made out to set aside the ex-parte judgment. The trial Court has considered all the aspects of the case and has passed an order stating that, it was the petitioner who was negligent in contesting the suit in O.S.No.25692/2007.

¶77

I do not find any factual or legal error

¶78

committed by the trial Court in dismissing the petition. Therefore, there is no merit in this appeal and appeal is

¶79

12 -

¶80

NC: 2025:KHC:24694 MFA No. 7361 of 2018

¶81

HC-KAR

¶82

liable to be dismissed and the impugned order challenged

¶83

in this appeal is to be confirmed.

¶84

14. Resultantly, I pass the following:

¶85

ORDER

¶86

(i) The appeal is dismissed.

¶87

(ii) The order dated 30.06.2018 passed in Misc.No.25233/2011 by the XIII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru(CCH-22), is hereby confirmed.

¶88

(iii) No orders as to cost.

¶89

Sd/(RAMACHANDRA D. HUDDAR) JUDGE

¶90

AM List No.: 1 Sl No.: 24

Sri Nanjundaiah S v. Smt Ramakka

Case brief

What is this about?

What did the court decide?

Sri Nanjundaiah S v. Smt Ramakka

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Mrs. Manjula Venkatesh Vs Mr. Naga @ Nagaraj

Smt M D Devamma Vs Smt K v Kalavathi

Sri C P Ramesh Kumar Vs Smt Umashree

Smt M Sharadamma Vs Smt Rathna

Sri H G Channaiah Vs Sri Gopala

Sri Mahesha S Vs Anitha J