Karnataka High Court
Sri Muniswamaiah @ Muniswamappa vs Sri Hanumanarasaiah on 31 January, 2025
-1-
NC: 2025:KHC:4530
WP No. 33996 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 33996 OF 2019 (GM-CPC)
BETWEEN:
1. SRI MUNISWAMAIAH @ MUNISWAMAPPA
SINCE DEAD BY LRS
SMT.JAYAMMA,
1A. W/O LATE MUNISWAMAIAH @
MUNISWAMAPPA
AGED 66 YEARS,
1B. SRI.CHANDRASHEKAR
S/O LATE MUNISWAMAIAH @
MUNISWAMAPPA
AGED 34 YEARS,
BOTH ARE R/AT 5TH CROSS,
ANJANAGARA, MUDDANAPALYA MAIN ROAD,
VISWANEEDAM POST, BENGALURU NORTH TALUK,
Digitally BENGLAURU-560 091.
signed by ...PETITIONERS
MEGHA (BY SRI.RAJESH S., ADVOCATE FOR
MOHAN SRI.MAHESH R. UPPIN, ADVOCATE)
Location:
HIGH AND:
COURT OF
KARNATAKA 1. SRI HANUMANARASAIAH
SINCE DEAD BY LRS
1A. LAKSHMAMMA
W/O LATE HANUMANARASAIAH
AGED 65 YEARS,
2. SRI.H.KAGGALAIAH @
KAGGALAHANUMANTHAIAH
S/O LATE HANUMANARASAIAH,
AGED ABOUT 45 YEARS
-2-
NC: 2025:KHC:4530
WP No. 33996 of 2019
3. SRI.H.ASWATHNARAYANA
S/O LATE HANUMANARASAIAH,
AGED ABOUT 42 YEARS
4. H.NARASIMHA MURTHY
S/O LATE HANUMANARASAIAH,
AGED ABOUT 37 YEARS
5. H.NAGARAJU
S/O LATE HANUMANARASAIAH,
AGED ABOUT 35 YEARS
ALL ARE R/AT K.HOSAHALLI VILLGE,
KANNALLI DAKALE,
YESHWANTHPURA HOBLI,
VISWANEEDAM POST,
BENGALURU NORTH TALUK,
BENGALURU-560 091
...RESPONDENTS
(BY SRI.B.M.ADIGA, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE RODER DATED
16.04.2019 PASSED BY LEARNED I ADDL. SENIOR CIVIL JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU IN O.S.NO.237/2017
PASSED ON I.A.NO.IV MARKED AS ANNEXURE-D.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the order passed in I.A.No.4 in
O.S.No.237/2017 dated 16.04.2019 by the I Addl. Senior Civil
Judge, Bangalore Rural District, Bangalore, defendant Nos.1
and 2 are before this Court.
NC: 2025:KHC:4530
2. The respondent herein had originally filed O.S.
No.1153/2009 against the husband of petitioner No.1 herein
and her husband expired on 27.11.2011, then she and her son
filed their vakalath and the case was posted for the framing of
issues. The Learned Judge on the ground of jurisdictional issue
had returned the plaint and the same was filed before the
present Court. It is the case of the defendants that they are not
aware of what is the case number, when the case is filed and
no summons were served on them. The Trial Court had posted
the matter for judgment though the summons were served on
the address of the defendants. Then, they came to know
through the advocate who appeared in the earlier case and
they have come up with this application. The plaintiff had filed
his objections and by way of impugned order, the Trial Court
had dismissed the application stating that the matter is
reserved for judgment at this stage, the application under
Order 9 Rule 7 of CPC cannot be entertained and that is beyond
the scope of Order 9 Rule 7 of CPC. Aggrieved thereby the
defendants are before this Court.
3. Learned counsel appearing for the petitioners/
defendants submits that when they were not even aware of the
NC: 2025:KHC:4530
suit and no summons were served and in the matter, they were
set exparte and the matter was posted for judgment. The Trial
Court ought to have considered the case as it would cause lot
of prejudice to the defendants. It is submitted that there is no
finding, there is no whisper about the service of summons on
the defendants and the order needs to be set aside.
4. Learned counsel appearing for the plaintiff/respondent
submits that it is only delaying tactics. In fact, the summons
were served on the defendants and they were waiting till the
matter is posted for judgment and at that point of time, they
have come up and filed this application. It is submitted that the
Trial Court had rightly considered all these aspects and rightly
dismissed the application as the said application cannot be
maintained after the suit is reserved for judgment. It is
submitted that no grounds are made out seeking interference
with the well considered order passed by the Trial Court.
5. Having heard the learned counsels on either side,
perused the material on record. The suit is filed before the
Learned Principal Judge Junior Division. In that suit, the father
and the husband of the defendant No.1 have contested the
NC: 2025:KHC:4530
matter and during the pendency of the matter, he died and the
defendants have filed their vakalath. Thereafter, on the ground
of jurisdiction it was transferred to the present Court. It is the
case of the defendants that they are not served with the
summons. It is the case of the plaintiff that the summons are
already been served on the defendants. When an application is
filed under Order 7 Rule 9 of CPC, though the suit is reserved
for judgment, the Trial Court ought to have considered whether
the summons were served on the defendants or not and
whether there is any reasonable cause to allow that application.
A perusal of impugned order shows that the Trial Court has not
done any of that exercise and no finding is given by the Trial
Court on that issue. If in case as submitted by the learned
counsel for the defendants, no summons are served on them
and they are not aware of the pending suit and whatever is the
stage of the proceedings, there cannot be any adverse order
against them without giving an opportunity to contest. The Trial
Court ought to have done exercise on this. If the Trial Court
comes to the conclusion that the summons are served and only
for the delay tactics these kind of applications are filed, the
Trial Court can as well impose exemplary costs on the party
NC: 2025:KHC:4530
who is abusing the process of the Court. In view of the above
discussions, this Court is passing the following:
ORDER
i. The order impugned in I.A.No.4 in
O.S.No.237/2017 dated 16.04.2019 by the I
Addl. Senior Civil Judge, Bangalore Rural
District, Bangalore, is set aside.
ii. The matter is remanded back to the Trial Court
for fresh consideration.
iii. The Trial Court shall consider the fact whether
the summons are served or not, if the summons
are served and the affidavit is filed with
misrepresentation of facts, the Trial Court shall
impose exemplary costs on the defendants.
iv. The parties shall appear before the Trial Court
on 10.02.2025 without further notice.
v. Accordingly, the writ petition is disposed off.
vi. All I.As., in the writ petition shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
