Sri Vedavyas Kamath Vs Mr B Sunil Bajilkeri @ Sunil Shettigar

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1 - NC: 2026:KHC:23201 W.P. No.281/2022

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27^TH DAY OF APRIL, 2026 BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.281/2022 (GM-CPC)

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BETWEEN:

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SRI. VEDAVYAS KAMATH S/O SRI. D. VAMAN KAMATH AGED ABOUT 43 YEARS R/AT NO.6-2-50(2) SRI LAXMINARAYANA Digitally signed GANDHINAGARA 7TH CROSS by RUPA V NEAR BHATS NURSING HOME Location: HIGH KODIALBAIL COURT OF MANGALORE 575 003. KARNATAKA

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…PETITIONER

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(BY SRI. ARUN SHYAM, SR. COUNSEL FOR SRI. SUYOG HERELE E, ADV.,)

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AND:

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MR. B. SUNIL BAJILKERI @ SUNIL SHETTIGAR AGED ABOUT 47 YEARS S/O GANAPATHI SHETTIGAR R/AT DOOR NO.1-N-5-373/1 THANTRI LANE, KOTTARA MANGALORE 575 006.

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…RESPONDENT

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(BY SRI. N. RAVINDRANATH KAMATH, SR. COUNSEL FOR SRI. SHASHIREKHA MANJAYYA SHETTY, ADV.,)

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NC: 2026:KHC:23201 W.P. No.281/2022

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HC-KAR

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DTD.16.11.2021 ON IA NO.5 IN O.S.NO.89/2020 ON THE FILE OF LEARNED I ADDL SENIOR CIVIL JUDGE AND CJM, D.K. MANGALORE AND DISMISS THE APPLICATION FILED BY THE RESPONDENT SEEKING FOR SETTING ASIDE THE ORDER OF PLACING HIM EX-PARTE (PRODUCED AT ANNEXURE-A) & ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 24.04.2026, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV JUDGMENT

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This writ petition is filed challenging the order dated 16.11.2021 passed on I.A.No.5 in O.S.No.89/2020 by the I Additional Senior Civil Judge and CJM, D.K., Mangaluru (for short, 'the Trial Court').

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Sri.Arun Shyam, learned Senior counsel

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appearing for Sri.Suyog Herele E., learned counsel for the petitioner submits that the petitioner filed a suit for damages. In the said suit, despite service of notice, the

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3 - NC: 2026:KHC:23201 W.P. No.281/2022

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HC-KAR

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respondent remained absent and was placed ex parte. Thereafter, the plaintiff adduced evidence, arguments were heard and the matter was reserved for judgment. At that stage, the respondent-defendant filed an application under Order IX Rule 7 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'the CPC') to set aside the order placing the defendant ex parte on 01.03.2021 which came to be allowed by the Trial Court under the impugned order, which is impermissible. It is submitted that the defendant has made reckless allegations on his own counsel without filing any complaint against him and such act is only to seek re-calling of the ex parte order. In support of his contentions, he placed reliance on the decision of the Hon'ble Supreme Court in the case of ARJUN SINGH Vs. MOHINDRA KUMAR AND OTHERS¹

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and also on the decision of this Court in the cases of

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K.S.POORNIMA Vs. H.DEVARAJU² , ARUN KUMAR T

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1 (1964) 5 SCR 946

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2 2019 SCC Online KAR 487

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NC: 2026:KHC:23201 W.P. No.281/2022

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HC-KAR

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AND OTHERS Vs. ADEMMA AND OTHERS³ and RABIYA BI KASSIM M Vs. THE COUNTRY WIDE CONSUMER FINANCIAL SERVICE LTD⁴ .

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Per contra , Sri.Ravindranath Kamath, learned Senior counsel appearing for Sri.Shashirekha Manjayya Shetty, learned counsel for the respondent supports the impugned order of the Trial Court and submits that the petitioner has filed a suit for damages of Rs.5,00,00,000/and the defendant requested Sri.K.P.Vasudeva Rao, a counsel to represent in the suit and handed over the vakalath. However, he could not represent which resulted in placing the defendant ex parte and later, when he came to know that he was placed ex parte , he immediately filed an application to re-call the ex parte order. It is submitted that the plaintiff has filed 3 false complaints against the defendant and based on such complaints, FIR came to be registered, he was arrested, was in judicial custody and after release, he filed an application. It is further

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3 2024 SCC Online KAR 16777

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4 2004 SCC Online KAR 195

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submitted that due to the lapse on the part of the advocate, the suit was proceeded and he did not file a complaint against the advocate before the Bar Council and this Court being the Court of equity, is required to consider the various aspects including the aspect that for the mistake of a counsel, the party cannot be allowed to suffer. It is also submitted that the defendant be provided an opportunity to defend the suit on merits by placing the evidence and substantiating the fact that the alleged defamatory statements are not correct. Hence, he seeks to dismiss the petition.

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I have heard the arguments of the learned Senior counsel for the petitioner, the learned Senior counsel for the respondent and perused the material available on record.

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The above writ petition is required to be allowed for the following reasons:

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NC: 2026:KHC:23201 W.P. No.281/2022

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HC-KAR

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(a) The petitioner filed O.S.No.89/2020 against the respondent before the Senior Civil Judge, Mangaluru, for the relief of damages to the tune of Rs.5,00,00,000/- with interest at 14% p.a. from the date of suit till realization of the damage amount for having slandered and defamed the plaintiff and for prohibitory injunction against the defendant for further such act.

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(b) The Trial Court granted an ex parte temporary injunction and issued suit summons to the defendant. The suit summons was served on the defendant on 14.10.2020 and the matter was adjourned to 18.11.2020 to give one more opportunity to the defendant to appear through an advocate.

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(c) On 01.03.2021, the defendant was placed ex parte . The order sheet indicates that the Trial Court on different dates, recorded the evidence of the

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HC-KAR

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plaintiff, heard the arguments and on 23.08.2021,

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posted the matter for judgment.

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(d) The defendant filed an application under Order IX Rule 7 read with Section 151 of the CPC, seeking to set aside the order dated 01.03.2021. The petitioner filed objections to the said application. The Trial Court, under the impugned order, allowed I.A.No.5 filed under Order IX Rule 7 read with Section 151 of the CPC, with a cost of Rs.1,000/-.

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(e) It is not in dispute that the defendant was served, he remained absent and was placed ex parte . The defendant had made various assertions in the application filed seeking to set aside the order 01.03.2021. The allegation is made against his counsel stating that despite handing over of the vakalath, he has not entered appearance and due to the negligence of the advocate, the defendant cannot be allowed to suffer.

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HC-KAR

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(f) The Hon'ble Supreme Court in the case of

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ARJUN SINGH referred supra, at paragraph 20 held

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as under:

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"20…… On the terms of Order IX. Rule. 7 if the defendant appears on such adjourned date and satisfies the court by the showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled — “set the clock back” and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a-vis the nonappearance of the defendant at the hearing of a suit has been provided for and Order IX. Rule. 7 and Order IX. Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus provision has been made for every contigency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order

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necessary for the ends of justice. Mr. Pathak, however, strenuously contended that a case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic. In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit : (1) where the hearing is adjourned or (2) where the hearing is completed. Where, the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX. Rule 1 permits judgment to be delivered after interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by Order IX. Rule 7 is passed the next stage is only the passing of a decree which on the terms of Order IX. Rule 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under Order IX. Rule 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the

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lines of Order IX. Rule 7. We are, therefore, of the opinion that the Civil Judge was not competent to entertain the application dated May 31, 1958 purporting to be under Order IX. Rule 7 and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition undo Order IX. Rule 13 filed by the appellant."

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(g) This Court in the case of RABIYA BI KASSIM M.

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referred supra , at paragraphs 9 and 10 has held as under:

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"9. On consideration, we are of the opinion that once the matter has been finally heard and posted for judgment, as held by the Supreme Court in Arjun Singh's case (supra) nothing is required to be done by the Court except to pronounce the judgment, and therefore the decision in Laxminarayan Enterprises case is not helpful. Admittedly, Clause (4) of Order 18 Rule 2, of CPC has been deleted and therefore the respondent-plaintiff cannot take advantage of Laxmin Arayan's case in the facts of the given case. Even if we assume it for the sake of argument without accepting, in view of the amendment in CPC, as we find, the law relating to procedure in suits and civil proceedings are

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governed by CPC. The CPC has been amended from time to time. Recently also, in order to cut short the delays at various levels in disposal of civil cases, CPC was amended by the Amendment Act of 1999 with effect from 1.7,2002. In the facts of the given case, sufficient opportunity was given to the plaintiff to complete his evidence, but he has not availed the opportunity at appropriate time and thereafter his evidence was closed. The case was fixed for defendant's evidence and ultimately the case was heard and reserved for judgment on 20.6.2001. In our view, if the matter is reserved for pronouncement of judgment, such an application is not maintainable as otherwise it will defeat the very object of amendment in speedy disposal of the cases.

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10. As discussed above, in the facts of the case on hand, we are of the opinion that making an interlocutory application to reopen the case and record further evidence after the matter is reserved for pronouncement of judgment is not permissible. We answer the question referred for decision by holding that no application can be filed after the final arguments have been heard and the matter is posted for judgment. The Single Bench decision of this Court in Laxminarayan Enterprises v. Laxminarayan Textile is not

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applicable in view of the decision of the Supreme Court and as stated above."

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(h) Keeping in mind the enunciations of law laid down by the Hon'ble Supreme Court and this Court, the application filed by the defendant seeking to set aside the order placing the defendant as ex parte, passed after conclusion of the arguments and reserving the matter for judgment, is not maintainable. In the case on hand, the defendant admittedly filed an application to set aside the ex parte proceedings after the matter was reserved for judgment. Hence, such an application ought to have been rejected at the threshold. Any explanation provided by the defendant in the application or in the submissions cannot be gone into in view of the settled position of law.

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For the aforementioned reasons, I proceed to

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pass the following:

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ORDER

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13 - NC: 2026:KHC:23201 W.P. No.281/2022

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HC-KAR

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(i) The writ petition is allowed.

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(ii) The impugned order dated 16.11.2021 passed on I.A.No.5 in O.S.No.89/2020 by the I Additional Senior Civil Judge and CJM, D.K., Mangaluru, is set aside.

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No order as to costs.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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RV List No.: 2 Sl No.: 2

Sri Vedavyas Kamath v. Mr B Sunil Bajilkeri @ Sunil Shettigar

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Sri Vedavyas Kamath v. Mr B Sunil Bajilkeri @ Sunil Shettigar

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