M S Nagesh Vs K S Padmakshegowda

THIS MFA FILED UNDER ORDER 43 RULE 1(d) OF CPC, DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC. IN THIS APPEAL, APPELLANT IS PRAYING TO SET ASIDE THE ORDER DATED 27.08.2021 PASSED IN CIVIL MISC. NO. 4/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, BELUR, RESULTANTLY SET SIDE THE EX PARTE DECREE DATED 02.04.2016 IN O.S.NO. 34/2015.

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NC: 2025:KHC:5399 MFA No. 7845 of 2023

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

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CORAM: HON'BLE MR JUSTICE K.NATARAJAN

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ORAL JUDGMENT

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This appeal is filed by the appellant/defendant for setting aside the order passed by the Senior Civil Judge and JMFC, Belur in Civil Mis. No.4/2016 dated 27.08.2021 for having dismissed the petition filed by the appellant under Order IX Rule 13 of CPC and for setting aside the exparte judgment which was passed in O.S.No.34/2015 dated 02.04.2016.

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Heard the arguments of learned counsel for the appellant as well as the learned counsel for the respondent.

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The appellant was the petitioner and

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respondent was the respondent before the trial Court.

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For the sake of convenience, the parties in this

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appeal shall be referred to in terms of their status and ranking before the trial Court.

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The case of the appellant is that the respondent

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herein filed a suit for specific performance of contract for directing the defendant to execute the sale deed in respect of agreement of sale ended between them by filing the suit in O.S.No.34/2015. A notice has been ordered by the

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trial Court where the notice has been served on petitioner/appellant, but he was placed exparte. Hereafter respondent examined himself as witness and got marked the documents. Finally suit of the plaintiff came to be decreed vide judgment dated 02.04.2016. Subsequently, the defendant - the appellant herein filed an application before the same Court under Order IX Rule 13 of CPC for setting aside the exparte judgment by making various grounds including one of the ground that his son said to be 75% disabled and he is unable to come to the Court within time and there was delay of 20 days in filing the petition.

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NC: 2025:KHC:5399 MFA No. 7845 of 2023

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Hence, along with the petition under Order IX Rule 13 of

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CPC, he has filed I.A under Section 5 of Limitation Act.

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The trial Court while considering the

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miscellaneous petition dismissed the petition mainly on the ground that the delay was not properly condoned. Hence, the application came to be dismissed on the delay, but not on merits. Accordingly, the appellant is before this Court.

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Having heard the arguments and perused the

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records, the point that would arise for consideration:

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i) Whether the trial Court committed an error in dismissing the petition on delay without considering merits of the case?

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ii) What order?

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On perusal of the records, admittedly, the appellant was the defendant and he was placed exparte.

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The plaintiff proved the case by examining three witnesses as Pws.1 to 3 and got marked 6 documents as Ex.P1 to Ex.P6 and subsequently, a judgment was passed, which is

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an exparte judgment. In the grounds made out by the defendant, the trial Court has power to allow the petition filed under Order IX Rule 13 of CPC for setting aside the exparte judgment and also can give an opportunity to the defendant to put forth the case. It is also contested by the learned counsel that it is only a loan transaction. The property values more than Rs.50 lakhs and for 8 acres of land, only Rs.15 lakhs has been mentioned as sale consideration. Therefore, he has to be given an opportunity to contest the matter. Such being the case, the trial Court ought to have given an opportunity to the appellant/petitioner to place his grounds on the merits of the case. But without doing so, the trial Court based upon the I.A. under Section 5 of the Limitation Act, dismissed the petition. It is also pertinent to note that the judgment passed on 02.04.2016 and from 04.04.2016 Court vacation started and reopens most probably in the last week of May. Such being the case, the trial Court ought to

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have given proper opportunity to contest the matter instead of dismissing the miscellaneous application based

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NC: 2025:KHC:5399 MFA No. 7845 of 2023

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upon the delay. Therefore, the order under challenge requires to be interfered.

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During the arguments, learned counsel for both the parties submits to set aside the exparte judgment and if an opportunity is granted to the appellant to contest the matter, will meet the ends of justice.

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Considering the arguments and facts of the case, instead of remanding the matter back to contest before the trial back by setting aside the exparte judgment and dismiss and once again the parties will move to this Court which will lead to multiplicity of litigation. Therefore, in order to avoid further delay and in order to give proper opportunity to the appellant to allow the miscellaneous petition filed by the petitioner/appellant under Order IX Rule 13 of CPC for setting aside the exparte judgment, the matter is disposed of by setting aside the petition which will meet the ends of justice.

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Accordingly, the following:

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ORDER

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i) The appeal is allowed.

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ii) The order of the trial Court in Civil Mis.No.4/2016 is hereby set aside. The petition is allowed. Consequently, the exparte judgment in O.S.No.34/2016 dated 02.04.2016 is hereby set aside.

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iii) The suit is restored to the original file subject to the costs of Rs.10,000/- payable to the plaintiff.

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iv) The parties shall appear before the trial Court without any further notice by 03.03.2025.

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v) The trial Court shall give an opportunity for filing the written statement and dispose the matter within one year from the date of filing the written statement.

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