Smt.Anitha Vs Smt.M.Jayamma

SMT. M. JAYAMMA, W/O G. S. NARAYANAPPA, AGED ABOUT 60 YEARS, RESIDING AT NO.99, BALAJI NILAYA, 5^TH MAIN ROAD, BHUVANESHWARI NAGAR, BENGALURU – 560 057.

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HC-KAR

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SRI. DODDA MUNIRAJA, S/O LATE CHIKKAMADDURAPPA, AGED ABOUT 39 YEARS,

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SRI. CHIKKA MUNIRAJU, S/O LATE CHIKKAMADDURAPPA, AGED ABOUT 36 YEARS,

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SRI. M. SRINIVASA, S/O LATE PPUTTAMARAPPA, AGED ABOUT 42 YEARS,

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SRI. HANUMANTHAPPA, S/O LATE MARIYAPPA, AGED ABOUT 29 YEARS,

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RESPONDENT NOS.2 TO 5 ARE RESIDING AT BAGALAKUNTE VILLAGE, NAGASANDRA POST, YESHWANTHPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU – 560 073.

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…RESPONDENTS

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(BY SRI. SEENAPPA K., ADVOCATE FOR R1; V/O DATED 24/06/2026 – NOTICE TO R2 TO R5 IS D/W)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE-1 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 01.12.2011 PASSED IN OS.No.7635/2007 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY AND ETC.,

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

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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 orders, with the consent of both the learned counsel appearing on behalf of the parties, the matter is taken up for final disposal.

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This Regular First Appeal is filed by the appellants/defendant Nos.5 and 6 calling question the judgment and decree dated 01.12.2011 passed in O.S.No.7635/2007 by the XI Additional City Civil Judge, Bengaluru City¹ , thereby, the suit filed for specific performance of contract was decreed.

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For the sake of convenience and easy

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reference, the parties are referred to as per their rankings before the Trial Court.

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Upon the suit instituted by the plaintiff for specific performance of contract was decreed placing the

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1 hereinafter referred to as ‘the Trial Court’ for short

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HC-KAR

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defendants ex-parte; therefore, appellants/defendant

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Nos.5 and 6 have preferred this present appeal.

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There is delay of 2945 days in filing the appeal.

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The learned counsel appearing on behalf of the appellants/defendant Nos.5 and 6 submitted that, by mentioning the wrong address in the cause title, an attempt was made by the plaintiff to serve notice on the wrong address; therefore, notices did not reach the defendants. In these circumstances, the Trial Court held that the defendants were placed ex-parte, but it was submitted that the defendants had not received any notice at all. Hence, prays to remand the case to the Trial Court for fresh disposal enabling the defendants to contest the suit.

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On the other hand, learned counsel appearing on behalf of the respondent/plaintiff submitted that the appellants/defendant Nos.5 and 6 had participated in the execution proceedings way back in the year 2012 and

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HC-KAR

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knew that the judgment and decree had been passed. Therefore, prays that the delay cannot be condoned and prays to dismiss the appeal.

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Considering the fact that the defendants

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remained ex-parte , the judgment and decree passed by the Trial Court is found to be one-sided. It is the claim of defendant Nos.5 and 6 that they had purchased the suit schedule property through registered sale deed dated 12.10.2006, but on 02.08.2007, the plaintiff/respondent No.1 attempted to put up a compound wall around the suit schedule property. Whatever it may be, these are the facts that can be considered during the trial and at this stage, there should not be any comment on it. However, the the judgment and decree passed by the Trial Court was ex-parte; hence, the Court is of the opinion that the delay of 2945 days in filing the appeal should be condoned and also the case should be remanded to the Trial Court after setting aside the ex-parte judgment and decree passed by the Trial Court. Thus, the appeal is liable to be allowed.

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HC-KAR

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In the result, I proceed to pass the following:

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ORDER

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i. The Regular First Appeal is allowed .

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ii. The ex-parte judgment and and decree dated 01.12.2011 passed in O.S.No.7635/2007 by the XI Additional City Civil Judge, Bengaluru City, is hereby set aside.

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iii. The matter is remanded to the Trial Court for fresh consideration in accordance with law.

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