K. Rangaswamy Vs Smt. H.T. Sundari

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1 - NC: 2025:KHC:30282 RFA No. 1005 of 2024

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF AUGUST, 2025

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BEFORE

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THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO. 1005 OF 2024 (DEC/INJ)

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BETWEEN:

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K. RANGASWAMY S/O LATE KOTE RANGAIAH AGED ABOUT 62 YEARS RESIDING AT 4^TH E CROSS, MARAPPA INDUSTRAIAL ESTATE, VINAYAKA NAGARA, KAMAKSHI PALYA, BENGALURU - 560079

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…APPELLANT

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(BY SRI. GANGADHARAPPA A V., ADVOCATE)

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AND:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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SMT. H.T. SUNDARI W/O RAMAKRISHNA AGED ABOUT 68 YEARS, RESIDING AT NO.477 16^TH MAIN BANASHANKARI I STAGE, SRINAGARA BENGALURU - 560050.

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SMT. LAKSHMAMMA W/O PUTTASWAMY AGED ABOUT 70 YEARS,

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SMT. MAHADEVAMMA W/O GANGANNA AGED ABOUT 60 YEARS, RESPONDENTS NOS.2 AND 3 ARE RESIDING AT 4^TH ‘E’ CROSS,

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NC: 2025:KHC:30282 RFA No. 1005 of 2024

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HC-KAR

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MARAPPA INDUSTRIAL ESTATE, VERUSHABAVATHI NAGARA/ MARUTHI NAGARA BENGALURU - 560 079.

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CHENNAPILLAIAH @ CHIKKAPILLAIAH S/O LATE KALEGOWDA SINCE DEAD BY LRS

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SMT. HANUMAKKA W/O LATE CHENNAPILLAIAH AGED ABOUT 95 YEARS,

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CHANNANARASIMHAIAH S/O LATE CHENNAPILLAIAH @ CHIKKAPILLANNA AGED ABOUT 75 YEARS,

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CHANDRAPPA S/O LATE CHENNAPILLAIAH @ CHIKKAPILLANNA AGED ABOUT 70 YEARS,

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PRAKASHA S/O LATE CHENNAPILLAIAH @ CHIKKAPILLANNA AGED ABOUT 69 YEARS

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RAMANNA S/O LATE CHENNAPILLAIAH @ CHIKKAPILLANNA AGED ABOUT 67 YEARS

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SMT. NAGARATHNAMMA D/O LATE CHENNAPILLAIAH @ CHIKKAPILLANNA AGED ABOUT 65 YEARS

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SMT. LEELAVATHAMMA D/O LATE CHENNAPILLAIAH @ CHIKKAPILLANNA AGED ABOUT 63 YEARS

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RESPONDENTS NO.4 TO 10 ARE

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R/AT ‘LAKSHMIPRASANNA SHIVANANDHI NILAYA’, 11^TH MAIN, AMBA MAHESHWARI TEMPLE ROAD, KAMAKSHI PALYA MAIN ROAD,

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3 - NC: 2025:KHC:30282 RFA No. 1005 of 2024

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HC-KAR

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BENGALURU - 560 079.

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SMT. KAMALAMMA D/O LATE CHENNAPILLAIAH @ CHIKKAPILLANNA AGED ABOUT 60 YEARS RESIDING AT NEAR GANAPATHI TEMPLE, KAREKALLU, KAMAKSHI PALYA, BENGALURU - 560 079.

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…RESPONDENTS

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(BY SRI NAIK N R., ADV. FOR C/R1; NOTICE TO R2 TO R11 IS DISPENDED WITH V/O DTD:18.03.2025)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.08.2009 PASSED IN OS NO.5929/2000 ON THE FILE OF XIV ADDITIONAL CITY CIVIL JUDGE, BANGALORE., DECREEING THE SUIT FOR DECLARATION AND MANDATORY INJUNCTION.

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THIS RFA, COMING ON FOR ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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The present regular first appeal is filed by defendant

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No.3 challenging the judgment and decree dated 14.08.2009 passed in OS No.5929/2000 by the XIV Additional City Civil Judge at Bangalore, (CCH-28) (hereinafter referred to as ‘Trial Court’ for short).

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HC-KAR

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The appeal is accompanied by I.A. No.1/2024

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filed under Section 5 of the Limitation Act, 1963 seeking condonation of delay of 4562 days in filing the appeal.

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3. Facts of the case :

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The plaintiff instituted a suit in O.S.No.5929/2000 seeking declaration of ownership over the suit schedule property, mandatory injunction for removal of the encroachment and structures by the defendants and a permanent injunction restraining the defendants from interfering with the remaining portion of the suit property.

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The Trial Court decreed the suit on 14.08.2009,

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declaring the plaintiff as the absolute owner of the suit property. The Trial Court directed the defendants to remove the structures and the encroachment and further restrained them from putting up any construction or interfering in the vacant portion of the suit property.

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The appellant (defendant No.3) contended that

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he was unaware of the judgment and decree until

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HC-KAR

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30.11.2009 when the persons on behalf of the plaintiff allegedly approached him demanding removal of the compound wall. He claims to have been kept in the dark by his counsel and failed to participate in the proceedings after initial appearances.

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Subsequently, the appellant filed Miscellaneous Petition No.935/2009 under Order IX Rule 13 to set aside the ex parte decree. The same was dismissed. A review petition and two writ petitions in WP Nos.8260/2015 and 7246/2021 were also filed and the same came to be dismissed. RFA No.1343/2009, filed by the co-defendantLakshmamma challenging the same decree, was also dismissed by this Court. The present appellant was arrayed as respondent No.3 in that appeal and was represented by counsel.

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Learned counsel for the appellant contends that

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he was not aware of the applications for amendment (I.A.Nos.8 and 9) filed by the plaintiff under Order VI Rule

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HC-KAR

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17 of CPC, as the matter was already reserved for judgment. It is argued that no opportunity was granted to file objection or an additional written statement. It is further submitted that the miscellaneous petition, review petition and writ petitions were filed within time, and therefore the delay in filing this appeal should be condoned. It is also argued that the decree grants possession in excess of what the plaintiff is entitled to, namely, 2.2 guntas (2,395.8 square feet), while the decree operates over 2,584 square feet, allegedly exceeding the extent purchased.

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8. Learned counsel for the respondents submits

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that the appellant was duly represented through counsel during the entire course of the trial proceedings, including at the time of filing and hearing of the amendment applications. The order sheets clearly reflect the presence of the counsel for all defendants, including the appellant. It is argued that the appellant has actively participated in

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various proceedings, viz ., Order IX Rule 13 of CPC,

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HC-KAR

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petition, review petition, writ petitions and also appeared in RFA No.1343/2009, which has attained finality.

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Having heard the learned counsel for the parties, the point that arises for consideration is:

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“Whether the appellant has shown sufficient cause for condonation of delay of 4562 days in filing the regular first appeal, particularly in light of his participation in earlier proceedings, and whether permitting this appeal would amount to re-opening the issues that have already attained finality?”

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Findings:

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From the material placed on record, it is evident that the appellant was represented through counsel at all stages of proceedings before the Trial Court. The order sheet records his participation and shows that I.A.Nos.8 and 9 filed for amendment were listed in his presence, yet no objections were filed. The Trial Court allowed the amendment applications and proceeded to hear the suit on merits.

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HC-KAR

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An application under Order IX Rule 13 of CPC was filed by the appellant herein in Miscellaneous Petition No.935/2009, the said miscellaneous petition was dismissed by an order dated 07.08.2014 holding that Lakshmamma, defendant No.1 in O.S.No.5929/2000, preferred appeal against the judgment and decree in O.S.No.5929/2000 in RFA.No.1343/2009 and the appellant herein had participated in the said RFA and contested the matter. The Court found that the judgment and decree passed in RFA.No.1343/2009 is binding on the parties and the petition filed by the appellant under Order IX Rule 13 of CPC came to be dismissed. The order in the Miscellaneous Petition No.935/2009 has attained finality,

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It is also relevant to note that in RFA No.1343/2009 filed by defendant No.1, the present appellant was arrayed as respondent No.3 and was represented by counsel, no objection was raised therein regarding non-service, ignorance of proceedings or denial of opportunity. When an application under Order IX Rule

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HC-KAR

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13 of CPC is dismissed, the defendants can only avail a remedy available there, viz, to prefer an appeal in terms of Order XLIII Rule 1 of CPC. In the instant case, defendant No.3 has not assailed the order rejecting the Miscellaneous application and hence, the appellant cannot raise the very same contention in the first appeal. If the appellant is permitted to take and raise the very such contention both in first appeal and also proceedings filed under Order IX Rule 13 of CPC, it would lead conflicting of decision, which is not contemplated in law. As the RFA preferred by the co-defendant has also been dismissed on merits on both counts, the appeal preferred by the appellant is not maintainable. A defendant against whom an ex-parte decree is passed can file either a first appeal under Section 96 (2) of CPC or an application under Order IX Rule 13 of

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CPC.

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HC-KAR

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The Apex Court in the case of Bhanu Kumar

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Jain Vs. Archana Kumar and Another¹ (Bhanu Kumar) has held at para Nos.38, 42 and 43 reads as under:

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“38 . The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for nonappearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr Chaudhari that the “Explanation” appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this Court in Rani Choudhury [(1982) 2 SCC 596] , P. Kiran Kumar [(2002) 5 SCC 161] and Shyam Sundar Sarma v. Pannalal Jaiswal [(2005) 1 SCC 436 : (2004) 9 Scale 270] .

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1 AIR 2005 SC 626

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HC-KAR

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42 . For the reasons aforementioned, we are of the opinion that although the judgment of the High Court is not sustainable as the reasons in support thereof cannot be accepted, the High Court for the reasons assigned hereinbefore must examine the respondents' claim on merits of the matter.

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43. The appeal is, therefore, allowed, the impugned judgment is set aside and the case remitted to the High Court for consideration of the case of the parties on merit of the matter. As the suit is pending since 1976, we would request the High Court to dispose of the appeal at an early date and preferably within a period of three months from the date of communication of this order. No costs.”

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The Apex court in the case of Bhanu Kumar

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observed that if the defendant chooses to file an application under Order IX Rule 13 of CPC and the same is dismissed on merits and attains finality, then in a subsequent first appeal under Section 96 (2) of CPC he cannot challenge the ex-parte nature of the decree or posting of the matter without notice, because the issue stands concluded. However, the Apex Court observed that still the defendant can challenge the decree on merits in

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NC: 2025:KHC:30282 RFA No. 1005 of 2024

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HC-KAR

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the appeal under Section 96(2) of CPC provided it is within limitation. The appellant in Miscellaneous Petition No.935/2009 has already raised the same ground, i.e., he was placed ex-parte . The said petition was dismissed and has attained finality. In RFA No.1343/2009 filed by defendant No.4, it was conclusively decided on merits.

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Allowing this appeal at this stage would effectively reopen the issue that has been conclusively adjudicated; such an exercise would be legally impermissible. It is also pertinent to observe that liberty granted by this Court in WP No.7246/2021 to avail an alternative remedy by way of regular first appeal cannot be interpreted as a carte blanche to override the doctrine of finality or to review a course of action that is otherwise barred by limitation. Liberty granted by a Court is always subject to the operation of statutory limitation and principles governing res judicata and finality of litigation. The explanation offered by the appellant for inordinate delay of 4562 days is neither satisfactory nor supported by

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HC-KAR

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credible evidence. Mere assertion of lack of communication

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with the counsel does not constitute sufficient cause under Section 5 of the Limitation Act, particularly when the appellant has lost on the same grounds in Miscellaneous Petition No.935/2009 which was dismissed and has attained finality.

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For the foregoing reasons, the point framed for

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consideration is answered accordingly and this Court pass the following:

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ORDER

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i. The appeal is barred by inordinate and unexplained delay of 4562 days.

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ii. The decree in O.S.No.5929/2000 has been upheld in several prior proceedings and has attained finality.

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iii. Entertaining this appeal would amount to reopening the matters that have already been conclusively decided. Accordingly, I.A. No.1/2024 seeking condonation of delay stands dismissed . Consequently, the regular first

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