Karnataka High Court
Sri.K.Raghu vs Sri Guruswamy on 3 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MSA No. 33 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.33 OF 2025 (RO)
BETWEEN:
1. SRI. K.RAGHU,
S/O KRISHNA REDDY,
AGED ABOUT 53 YEARS,
R/AT CKR TOWER,
HOUSE NO.8,
SARAKKI MAIN ROAD,
J.P. NAGARA 1ST STAGE,
BENGALURU-560 078.
...APPELLANT
(BY SRI. NANDISH GOWDA G.B., ADVOCATE)
AND:
Digitally signed
by DEVIKA M 1. SRI. GURUSWAMY,
Location: HIGH S/O LATE SHIVANNA,
COURT OF AGED ABOUT 67 YEARS.
KARNATAKA
SRI. G. SRINIVASA,
S/O LATE. GURUSWAMY,
SINCE DECESASED BY HIS LR'S.
2. SMT. PUSHPA,
W/O LATE. SRINIVASA,
AGED ABOUT 41 YEARS.
3. KUMARI DEEKSHITHA S.,
D/O LATE SRINIVASA,
AGED ABOUT 17 YEARS.
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4. MASTER SHASHANK S.,
S/O LATE SRINIVASA,
AGED ABOUT 13 YEARS.
THE RESPONENTS NO.3 AND 4 ARE MINORS,
REPRESENTED BY THEIR MOTHER AND NATURAL
GUARDIAN RESPONDENT NO.2.
ALL ARE R/AT DODDINDAWADI VILLAGE,
KOLLEGALA TALUK,
CHAMRAJANAGARA DISTRICT-571440.
...RESPONDENTS
(BY SRI. RAMESHA M.S., ADVOCATE FOR R1 AND R2;
R3 AND R4 ARE MINORS AND REP BY R2)
THIS MSA IS FILED UNDER SECTION 43 RULE (1)(u) OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
26.11.2024 PASSED IN R.A.NO.5070/2023 ON THE FILE OF
THE ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHAMARAJANAGARA (SITTING AT KOLLEGALA), ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 08.07.2013 PASSED IN O.S.NO.327/2012 ON
THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC,
KOLLEGALA, DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE OF CONTRACT. THE CASE IS REMANDED
BACK TO THE TRIAL COURT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondents.
2. Having perused the judgment of the Trial Court,
the suit for the relief of specific performance was decreed and
the same was challenged by the legal representatives of
defendant No.2. The main contention of the defendants
before the First Appellate Court is that no notice was served
on the defendants before the Trial Court in O.S.No.327/2012
and only an advocate appeared and undertook to file the
Vakalath. The First Appellate Court having considered the
grounds which have been urged in the appeal, in paragraph
No.13 taken note of that though one advocate Sri S.S.B.
undertakes to file vakalath for the defendants, he did not
choose to file the vakalath and even when there was no any
documentary evidence with regard to the service of notice
against the defendants, the Trial Court proceeded to pass the
judgment exparte against the defendants without service of
notice. Hence, the First Appellate Court comes to the
conclusion that the very placing the defendants as exparte
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without giving any opportunity and also without service of
notice is an erroneous order. Only an undertaking was given
by the advocate and he did not file the vakalath and only on
oral submission, the Trial Court passed the exparte order
against the defendants. The First Appellate Court noticed that
when summons were not issued and the counsel, who
undertook to file vakalath not appeared and did not file the
vakalath and did not intimate about the defendants to the
Court, the Trial Court ought to have issued fresh summons to
the defendants or at least the Trial Court ought to have issued
Court notice to the defendants, but without issuance of notice,
proceeded to pass the order. Hence, the First Appellate Court
comes to the conclusion that when there was no service of
notice in the original suit, the matter requires remand by
setting aside the order of the Trial Court to give an
opportunity to both the sides and decide the matter in issue.
The said order has been challenged before this Court.
3. The learned counsel for the appellant before this
Court would vehemently contend that even though no notice
was served in the original suit, when execution petition was
filed, notice was served on the respondents and the
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respondents also appeared through the counsel and the very
counsel who undertook to appear in the Trial Court has filed
the vakalath.
4. This Court had directed the learned counsel for
the appellant to produce the copy of the vakalath and the
learned counsel took time to produce the vakalath, but not
placed on record. However, taking into note of when there
was no any service of notice in the original suit against the
respondents and only on the undertaking of the advocate, the
Trial Court ought not to have proceeded and passed exparte
judgment against the respondents. Having perused the
reasoning given by the Trial Court, the First Appellate Court
rightly observed that without service of notice to the
respondents, the Trial Court proceeded to pass the order and
also advocate who undertook to file the vakalath did not file
the vakalath. When such being the case and when the
exparte judgment was passed against the respondents, I do
not find any error committed by the First Appellate Court in
setting aside the order of the Trial Court and remanding the
matter to the Trial Court to proceed in the matter and
direction was also given to appear before the Trial Court on
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16.12.2024. It was also made clear that time for filing of the
written statement shall start from that date. Having perused
the records, this Court found that there are no reasons to
interfere with the findings of the First Appellate Court and
reasoned order has been passed. There cannot be any decree
of specific performance without giving an opportunity to the
respondents and no material is placed before the Court that
the respondents have been served before the Trial Court and
hence I do not find any ground to interfere with the judgment
of the First Appellate Court.
5. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is dismissed.
(ii) The parties are directed to appear before the
Trial Court on 01.08.2025, without expecting
any notice from the Trial Court.
(iii) The respondents herein is directed to file the
written statement within one month from
01.08.2025.
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(iv) The Trial Court is directed to proceed in
accordance with law and dispose of the suit
within six months from 01.08.2025.
Sd/-
(H.P.SANDESH)
JUDGE
MD
