Karnataka High Court
Sri R Y Venkatesh Reddy vs Smt R Y Padma on 1 March, 2023
Bench: S.R.Krishna Kumar
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MFA No. 781 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
MISCELLANEOUS FIRST APPEAL NO. 781 OF 2023 (CPC)
BETWEEN:
SRI. R Y VENKATESH REDDY
S/O LATE YELLAPPA
AGED 57 YEARS
R/AT RAMANAYAKANAHALLI VILLAGE
GUNJUR POST, SARJAPURA HOBLI
ANEKAL TALUK
BANGALORE - 560087
...APPELLANT
(BY SRI. A MADHUSUDHANA RAO., ADVOCATE)
AND:
1. SMT R Y PADMA
D/O LATE YELLAPPA
W/O PAPA REDDY
Digitally
signed by AGED 51 YEARS
JUANITA R/AT NERALUR VILLAGE & POST
THEJESWINI
Location:
ATTIBELE HOBLI
HIGH BANGALORE - 562107
COURT OF
KARNATAKA
SMT. JAYAMMA
W/O LATE YELLAPPA
SINCE DEAD BY LRS
I.E. PETITIONER AND
RESPONDENTS
2. SMT. R Y VENKATALAKSHAMMA
D/O LATE YELLAPPA
W/O MUNI REDDY
-2-
MFA No. 781 of 2023
AGED 61 YEARS
R/AT C/O LATE PATEL THIMMA REDDY
BOMMASANDRA
BOMMASANDRA INDUSTRIAL AREA
BANGALORE - 560099
SMT. R Y SARASWATHAMMA
D/O LATE YELLAPPA
W/O SRINIVAS REDDY
SINCE DEAD BY LRS
3. SRI SRINIVAS REDDY
S/O LATE MUNI REDDY
AGED 69 YEARS
4. SRI SATHISH KUMAR
S/O SRINIVAS REDDY
AGED 39 YEARS
RESPONDENTS 3 AND 4 ARE
R/AT HULIMANGALA HOSKOTE VILLAGE
HULIMANGALA POST
LAKKUR HOBLI MALUR TALUK
KOLAR DISTRICT - 563160
5. SMT. SAVITHA
W/O NARAYANA REDDY
AGED 42 YEARS
R/AT MUTTHAGATTI VILLAGE
BESTHAMANAHALLI POST
KASABA HOBLI, ANEKAL DISTRICT
BENGALURU URBAN DISTRICT
6. SMT. BHAGYA
W/O PILLA REDDY
AGED 37 YEARS
R/AT KUMBARANAHALLI VILLAGE
HARAGADDE POST, KASABA HOBLI
ANEKAL TALUK
BANGALORE - 560105
-3-
MFA No. 781 of 2023
7. SRI RAMASWAMY REDDY
S/O LATE NALLAPPANAVARA
YELLAREDDY
AGED 61 YEARS
8. SRI R RAGHUNATH
S/O RAMASWAMY REDDY
AGED 37 YEARS
RESPONDENTS NO. 7 AND 8 ARE
R/AT BILLAPURA VILLAGE
BIDARAGUPPE POST
SARJAPURA HOBLI
ANEKAL TALUK
BANGALORE - 560034
9. SMT. R SHILPA
D/O RAMASWAMY REDDY
W/O MURALI
AGED 34 YEARS
R/AT 534, 1ST MAIN,
TEACHERS COLONY,
KORAMANGALA POST
BANGALORE - 560034
10. SRI. R Y NANJUNDA REDDY
S/O LATE YELLAPPA
AGED 46 YEARS
R/AT RAMANAYAKANAHALLI VILLAGE
GUNJUR POST,
SARJAPURA HOBLI
ANEKAL TALUK
BANGALORE URBAN DISTRICT
11. SMT. R Y LALITHA
D/O LATE YELLAPPA
W/O MUNIRAJU
AGED 43 YEARS
R/AT KUMBARANAHALLI VILLAGE
HARAGADDE POST
-4-
MFA No. 781 of 2023
KASABA HOBLI
ANEKAL TALUK
BANGALORE URBAN DISTRICT
...RESPONDENTS
(BY SRI. K.K. VASANTH, ADVOCATE FOR C/R1)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF CPC
AGAINST THE ORDER DT.12.01.2023 PASSED IN MISC. CASE
NO.31/2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, ANEKAL, DISMISSING THE PETITION FILED
U/O.9 RULE 13 OF THE CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned order dated
12.01.2023 passed in Miscellaneous Petition No.31/2010 by
the II Additional Senior Civil Judge & JMFC, Anekal, whereby the
said petition filed by the appellant under Order IX Rule 13 of the
Code of Civil Procedure, seeking setting aside of the exparte
judgment and decree dated 09.09.2010 passed in
O.S.No.607/2009 on the file of Senior Civil Judge and JMFC,
Anekal, was rejected by the Trial Court.
2. Heard learned Counsel for the appellant and learned
Counsel for respondent No.1-caveator and perused the material on
MFA No. 781 of 2023
record. In the order proposed, notice to remaining respondents is
dispensed with.
3. The material on record discloses respondent No.1-plaintiff
instituted the suit in O.S.No.607/2009 for partition and separate
possession of alleged share in the suit schedule immovable
properties and for other reliefs. In the said suit, the appellant was
arrayed as defendant No.4 and the remaining respondents were
arrayed as the remaining defendants. Insofar as the appellant-
defendant No.4 was concerned, he was placed exparte by the Trial
Court in the suit on the ground that summons was refused by him.
In this context, it is the specific contention of the appellant that
summons were actually never served upon the appellant and as
such, the question of the appellant refusing service of summons
upon him did not arise in the facts of the instant case. In view of
the appellant as well as the other defendants having been placed
exparte and not contesting the suit, the Trial court proceeded to
pass the judgment and decree dated 09.09.2010 decreeing the suit
in favour of respondent No.1-plaintiff. Subsequently, the appellant-
defendant No.4 filed the instant Miscellaneous Petition No.31/2010
under Order IX Rule 13 of the Code of Civil Procedure, seeking
MFA No. 781 of 2023
setting aside of the exparte judgment and decree insofar as the
appellant was concerned. The said petition having been opposed
by respondent No.1-plaintiff, the Trial Court proceeded to pass the
impugned order rejecting the said Miscellaneous Petition,
aggrieved by which the appellant is before this Court by way of the
present appeal.
4. A perusal of the material on record including the impugned
order will indicate that the Trial Court has failed to consider and
appreciate that having regard to the nature of the suit, relationship
between the parties and the properties involved in the suit, it was
necessary to adopt a justice oriented approach and provide one
more opportunity to the appellant to contest the suit by filing his
written statement opposing the claim of respondent No.1-plaintiff.
However, the Trial Court has adopted a hyper-technical approach
and has come to the erroneous conclusion that the appellant had
not made out sufficient cause in not appearing before the Trial
Court by refusing receipt of suit summons.
5. Under these circumstances, in view of the specific
assertion on the part of the appellant that he did not appear before
the Trial Court in the suit and contest the same due to bona fide
MFA No. 781 of 2023
reasons, unavoidable circumstances and sufficient cause, I deem it
just and appropriate to set aside the impugned order and exparte
judgment and decree for the purpose of providing one more
opportunity in favour of appellant-defendant No.4 to contest the suit
within a stipulated timeframe.
6. In the result, I pass the following:
ORDER
(i) The appeal is hereby allowed.
(ii) The impugned order dated 12.01.2023 passed in
Miscellaneous Case No.31/2010 by the II Additional
Senior Civil Judge and JMFC, Anekal, is hereby set
aside.
(iii) Consequently, the judgment and decree dated
09.09.2010 passed in O.S.No.607/2009 on the file of
Senior Civil Judge and JMFC, Anekal, is hereby set
aside and the said suit is restored to the file of the
trial court.
(iv) The appellant and respondent No.1 undertake to
appear before the Trial Court in O.S.No.607/2009 on
20th March 2023 without awaiting further notice from
the trial court.
MFA No. 781 of 2023
(v) The appellant is directed to file written statement on
20.03.2023 before the trial Court without seeking any
adjournment under any circumstances whatsoever.
(vi) Immediately upon the appellant filing the written
statement, the Trial Court is directed to frame issues
and proceed further in the matter and dispose of the
suit within a period of six months from 20.03.2023.
(vii) It is further directed that till disposal of the suit by the
Trial Court, all parties are directed to maintain status-
quo in all respects as on today in relation to the suit
schedule properties.
All rival contentions on all aspects of the matter are kept
open and no opinion is expressed on the same.
Sd/-
JUDGE
JT/-
