Karnataka High Court
Sri C P Ramesh Kumar vs Smt Umashree on 7 July, 2025
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MFA No. 4341 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 4341 OF 2024 (CPC)
BETWEEN:
SRI C.P. RAMESH KUMAR
S/O C.M. PUTTASWAMY
AGED ABOUT 56 YEARS
RESIDING AT NO.1909, 3RD 'F' BLOCK
DATTAGAHALLI 3RD STAGE
KANAKADASA NAGAR
MYSORE-5770 022.
...APPELLANT
(BY SRI. Y.R. SADASIVA REDDY, SENIOR ADVOCATE FOR
SRI. C. MANJUNATHA, ADVOCATE)
AND:
1. SMT. UMASHREE
D/O. LATE MARIYAPPA @CHINNAPPA
Digitally
signed by @CHINNAIAH
ANJALI M W/O. B.D. CHANDRASHEKAR
Location:
High Court AGED BOUT 54 YEARS
of Karnataka RESIDING AT HUNASAMARANAHALLI
YELAHANKA
BENGALURU NORTH TALUK
BENGALURU-560 065.
2. SMT. BHAGYAMMA
D/O. LATE MARIYAMMA AND CHINNAPPA
@ CHINNAIAH
W/O. R. MANJUNATH
AGED ABOUT 52 YEARS
RESIDING AT NO.50, 22ND CROSS
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MFA No. 4341 of 2024
HC-KAR
1ST MAIN, MARUTHINAGAR
YELAHANKA, BENGALURU -560 060.
3. SRI SANTHOSH KUMAR
S/O. LATE MARIYAMMA AND CHINNAPPA
@ CHINNAIAH
AGED ABOUT 42 YEARS.
4. SMT. NAGAMANI
D/O. LATE MARIYAMMA AND CHINNAPPA
@ CHINNAIAH
AGED ABOUT 44 YEARS
RESPONDENT NOS.3 AND 4 ARE
RESIDING AT 1ST MAIN ROAD
NEAR CANARA BANK
VARTHURU, BENGALURU-560 087.
5. SRI. MURTHY
S/O. LATE GOWRAMMA AND PUTTAPPA
AGED ABOUT 44 YEARS.
6. SRI. SHANKARA
S/O. LATE GOWRAMMA AND PUTTAPPA
AGED ABOUT 42 YEARS
RESPONDENT NOS.5 AND 6 ARE
RESIDING AT NO.97, 10TH MAIN
MANJUNATHANAGARA
BENGALURU-560 030.
7. SMT. NIRMALA
D/O. LATE GOWRAMMA AND PUTTAPPA
AGED ABOUT 40 YEARS
RESIDING AT MALUR VILLAGE AND POST
SIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT-562 105.
8. SMT. MANGALA
D/O. LATE GOWRAMMA AND PUTTAPPA
AGED ABOUT 38 YEARS
RESIDING AT CHANDENAHALLI VILLAGE
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MFA No. 4341 of 2024
HC-KAR
POST AND HOBLI
DEVANAHALLI TALUK
BENGALURU-562 110.
9. SRI SRINIVASA
S/O. LATE JAYAMMA AND RAMAKRISHNA
AGED ABOUT 44 YEARS.
10. SMT. PUSHPA
D/O. LATE JAYAMMA AND RAMAKRISHNA
AGED ABOUT 40 YEARS
RESPONDENT NOS.9 AND 10 ARE
RESIDING AT NO.223/7
7TH MAIN, 3RD CROSS
KENGERI UPANAGARA
BENGALURU-560 060.
11. SMT. NANJAMMA
W/O. LATE ANJINAPPA
AGED ABOUT 64 YEARS.
12. SMT. ANNAMMA
D/O. LATE ANJINAPPA
W/O. SHANTHAKUMAR
AGED ABOUT 44 YEARS
RESIDING AT NO.354
BUS STAND ROAD
KENGERI,
BENGALURU-560 060.
13. SRI. KUMAR
S/O. LATE ANJINAPPA
AGED ABOUT 41 YEARS.
14. SRI. SANJEEVAPPA
S/O. LATE ANJINAPPA
AGED ABOUT 40 YEARS.
15. SMT. YELLAMMA
D/O. LATE ANJINAPPA
AGED ABOUT 39 YEARS
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MFA No. 4341 of 2024
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RESPONDENT NOS.11, 13 TO 15 ARE
RESIDING AT NO.63, SAWMILL ROAD
BEHIND VENKATESHWARA THEATER
KENGERI NEW EXTENSION
KENGERI
BENGALURU-560 060.
16. SMT. SHARADAMMA
D/O. LATE MUNIYAPPA
W/O. MUNIYAPPA
AGED ABOUT 68 YEARS
RESIDING AT KUMBALAHALLI VILLAGE AND POST
BENGALURU.
17. SMT. RATHNAMMA
D/O. LATE MUNIYAPPA
W/O. LAKSHMAIAH
AGED ABOUT 66 YEARS
RESIDING AT KUMBALAHALLI VILLAGE AND POST
BENGALURU-562 114.
SANJEEVAPPA @ MARIYAPPA
S/O. LATE KARIYAPPA
AGED ABOUT 64 YEARS
SINCE DEAD AND THE RESPONDENTS
NO.18 TO 21 ARE THE SONS OF
DEFENDANT NO.8 AND THEY ARE
THE ONLY LEGAL HEIRS.
18. SRI M. SANJEEVAMURTHY
S/O. LATE SANJEEVAPPA @ MARIYAPPA
AGED ABOUT 50 YEARS.
19. SRI M. JAYARAM
S/O. LATE SANJEEVAPPA @ MARIYAPPA
AGED ABOUT 48 YEARS.
20. SRI MUKUNDA
S/O. LATE SANJEEVAPPA @ MARIYAPPA
AGED ABOUT 46 YEARS.
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MFA No. 4341 of 2024
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21. SRI SHANKARAPPA
S/O. PILLAPPA
AGED ABOUT 62 YEARS.
22. SRI S. MUNIRAJU
S/O. SHANKARAPPA
AGED ABOUT 39 YEARS.
23. SRI HEMANTH
S/O. SHANKARAPPA
AGED ABOUT 36 YEARS.
24. MUNIRAJU
S/O. PILLAPPA
AGED ABOUT 59 YEARS.
25. SMT. RUKMINI
D/O. MUNIRAJU
AGED ABOUT 37 YEARS.
26. SRI NAGARAJU
S/O. MUNIRAJU
AGED ABOUT 35 YEARS.
27. SMT. MARIYAMMA
W/O. LATE MUNISANJEEVAPPA
AGED ABOUT 82 YEARS.
28. SRI NAGARAJA
S/O. LATE MUNISANJEEVAPPA
AGED ABOUT 50 YEARS
RESPONDENT NOS.18 TO 28 ARE
RESIDING AT KENGERI VILLAGE
KENGERI HOBLI
BENGALURU SOUTH TALUK
BENGALURU-560 060.
29. SMT. UMA SHIVAPRASAD
W/O. SHIVAPRASAD
AGED ABOUT 52 YEARS
RESIDING AT NO.1415
8TH 'A MAIN ROAD
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MFA No. 4341 of 2024
HC-KAR
HRBR LAYOUT
II BLOCK, KALYANA NAGAR
BENGALURU-560 060.
30. MRS. CARMEL PRABHU
AGED ABOUT 74 YEARS
RESIDING AT KALMANI NO.78
LELLE ROAD
BENGALURU-560 001.
31. M/S D.A. DEVELOPERS PVT. LTD.
REPRESENTED BY ITS DIRECTOR
SRI. AVINASH PRABHU, NO.11, HAYAS ROAD
BENGALURU-560 001.
...RESPONDENTS
(BY SRI. K.V. MANJUNATHA, ADVOCATE FOR R-5 TO R-8;
R-1 TO R-4, R-9 AND R-10 ARE SERVED, UNREPRESENTED;
VIDE ORDER DATED 9-7-2024, NOTICE TO R-11 TO
R-31 IS DISPENSED WITH)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(d) OF THE CPC, AGAINST THE ORDER
DATED 18-11-2023 PASSED IN MISC NO.25001 OF 2018 ON
THE FILE OF THE IV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, MAYO HALL UNIT, BENGALURU, (CCH-21),
DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13
R/W SECTION 151 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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MFA No. 4341 of 2024
HC-KAR
ORAL JUDGMENT
The appellant/defendant No.20 in
Misc.No.25001/2018 has filed this appeal under Order
XLIII Rule 1(d) of CPC read with Section 104 of CPC with a
prayer to call for the records in Misc.No.25001/18 relating
to OS.No.25124/2013 on the file of IV Additional City Civil
and Sessions Judge at Mayohall Unit, Bengaluru (CCH-21)
and set aside the impugned order dated 18.11.2023
passed in Misc.No.25001/18, by the said Court dismissing
the petition of the appellant, filed under Order IX Rule 13
of CPC and set aside the ex-parte judgment and decree
passed in OS.No.25124/2013 dated 10.11.2017 by
allowing this appeal.
2. Parties to this appeal are referred to as per the
ranking before the trial Court.
3. That the present appellant/defendant No.2 filed
a miscellaneous petition in Misc.No.25001/2018 under
Order IX Rule 13 of CPC to set aside ex-parte judgment
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and decree passed by the City Civil Court in OS
No.25124/2013 dated 10.11.2017 stating that, the
respondent Nos.1 to 10 filed OS.No.25124/2013 seeking
the relief of partition, declaration and permanent
injunction against the petitioner and other respondents
Nos.11 to 31. The present appellant was arrayed as
defendant No.20 in the said suit. In the said suit,
defendant No.20 was placed ex-parte. So also defendant
Nos.1 to 13, 5 and 11 were also absent before the Court
and they were also treated as ex-parte. The other
defendants though appeared but did not contest the said
suit. The said suit came to be decreed on 10.11.2017. It is
further stated that, the appellant/petitioner came to know
about the decree of the suit on 13.11.2017. Thereafter,
he requested his counsel to enquire about the same as he
has got interest in the schedule property as a GPA holder
of respondent Nos.11 to 15 and 18 to 28 and executed the
registered sale deed dated 13.04.2005 in favour of
respondent No.29. It is stated that, the appellant has got
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responsibility to protect the interest of the said
respondents who are the vendors and purchasers of the
suit property.
4. It is a specific case of the petitioner before the
trial Court that, he is a resident of Kengeri, Bengaluru and
had informed to one Shivakumar over a phone regarding
disposal of the suit. In fact, the said Mr.Shanthakumar,
commonly known to the petitioner as well as respondent
Nos.1 to 10. It is further stated that no suit summons
were served upon the appellant/petitioner. Even it is
stated that, there was a paper publication, but he was
placed ex-parte as he did not appear before the Court as
he was not knowing about the said suit.
5. It is further stated that, the said paper
publication was taken by the plaintiff therein behind the
back of the petitioner. Petitioner is a permanent resident
of Mysore. But the wrong address was given. Thus, it is
stated that, as the plaintiff in the said suit has obtained
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the ex-parte decree, now the petitioner/appellant is
constrained to file the petition for setting aside the same.
6. Before the trial Court respondent Nos. 1 to 10,
16 and 17 have appeared through their counsel.
Respondent Nos.1 to 10 have filed the objections and
respondent Nos. 16 and 17 have adopted the same.
7. Inter alia, the aforesaid respondents have
denied the entire contents of the petition. It is contented
that, the present defendant No.20 has no locus standi to
file the petition. It is stated that, the petitioner and
respondent No.29, the purchaser and her husband are
closely associated with each other and they have full
knowledge about the civil proceedings against them. In
spite of that, they remained absent before the Court to
harass the present respondents. The respondent No.20
has already filed an appeal before this Court. In addition
to that, the plaintiff's husband, Mr. Shivaprasad, instigated
the petitioner to file the false and frivolous petition.
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Therefore, it is prayed by the respondents to dismiss the
petition.
8. Before the Trial Court, to substantiate the
assertions made by the petitioner, one C.P.Ramesh Kumar
entered the witness box as PW1 i.e., a petitioner and one
PW2 C.M.Shantha Kumar was examined as PW2. On behalf
of the petitioner, Ex.P1 to Ex.P3 were marked. The records
placed on record by the appellant/petitioner shows that,
PW1 and PW2 were not cross-examined by the
respondents though they have filed the objections. They
have not lead any evidence on their behalf. The learned
trial Court has dismissed the said petition filed by the
petitioner. This is how, now the petitioner is before this
Court by preferring this appeal.
9. The petition was filed by the petitioner under
Order IX Rule 13 read with Section 151 of CPC. The
provisions of Order IX Rule 13 of CPC reads as under:
"13. Setting aside decree ex parte against
defendants-In any case in which a decree is passed ex
parte against a defendant, he may apply to the Court by
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which the decree was passed for an order to set it
aside; and if he satisfies the Court that the summons
was not duly served, or that he was prevented by any
sufficient cause from appearing when the suit was called
on for hearing, the Court shall make an order setting
aside the decree as against him upon such terms as to
costs, payment into Court or otherwise as it thinks fit,
and shall appoint a day for proceeding with the suit:
Provided that whether the decree is of such a
nature that it cannot be set aside as against such
defendant only it may be set aside against all or any of
the defendants also."
10. Thus, the scope of Order IX Rule 13 of CPC is
that, if the petitioner satisfies the Court that, the
summons was not only served or that he was prevented
by any sufficient cause from appearing when the suit was
called on for hearing, the Court shall make an order
setting aside the decree as against him upon such terms
as to costs, payment or otherwise as if things fit and shall
appoint a day for proceeding.
11. In this case, the main objections of the
petitioner in the petition, as well as before this Court in
the appeal is that, suit summons were not at all served on
the appellant/defendant No.29. Though paper publication
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was taken by the plaintiff therein in OS No.25124/2013, it
was taken on a wrong address. Behind the back of the
petitioner, the decree was obtained by the plaintiff on
10.11.2017 which is a ex-parte decree. These assertions
so made by the petitioner are reiterated by PW1 and PW2
in their respective evidence. The contesting respondents
have not at all challenged the said evidence of PW1 and
PW2 by cross examining them. That means whatever the
examining chief stated by PW1 and PW2 have been
remained as it is without any rebuttal in the cross
examination. Though the contesting respondents filed the
objections before the trial Court, they have failed to rebut
the evidence spoken to by PW1, PW2. PW1 is specific in
his evidence that, no suit summons was served on him. So
also there is no proper paper publication taken by the
plaintiff in OS.No.25124/2013. These facts so stated are
not challenged by the respondents by cross- examining
PW1 and PW2. However the trial Court while passing the
impugned orders in the page 15 at para 17 has strangely
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stated that, "I am of the opinion that, the moment when
he executes the sale deed in favour of defendant No.21 as
Power of Attorney Holder, the authority given to him under
the said Power of Attorney comes to an end and he has
lost all his rights and liabilities, so the judgment and
decree passed will not affect in any way and he will not
suffer from the said judgment."
12. This observation of the trial Court in the course
of the order is unknown to the procedures so stated in
Order IX Rule 13 of CPC. While deciding the application
for setting aside the ex-parte decree, the Court is not
expected to decide the lis on merits. If the petitioner
satisfies the ingredients of Order IX Rule 13 of CPC, that
would be sufficient. In this case, the petitioner is specific
that, no suit summons was served and even paper
publication is wrongly published by the plaintiff therein.
That is the sufficient ground to set aside the ex-parte
decree. Instead of that, the trial Court ventured upon to
give its finding on merits which is not warranted. The
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respondents have not challenged the evidence of PW1 and
PW2 and have not substantiated their objections by
leading evidence.
13. In view of the grounds urged in the appeal
memo and law with regard to setting aside ex-parte
decree, the petitioner has made out grounds to allow this
appeal and set aside the impugned order. Accordingly, I
pass the following:
ORDER
i. The appeal is allowed.
ii. The impugned order in Misc.No.25001/2018
dated 18.11.2023 is set aside. Consequentially,
Misc.No. 25001/2018 is allowed.
iii. The ex-parte judgment and decree so passed in
OS.No.25124/2013 dated 10.11.2017 is set
aside.
iv. The said OS.No.25124/2013 is restored to its
own file.
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v. The defendant No.29 being petitioner shall file
written statement within 30 days from the date
of appearance without fail.
vi. Both appellant and respondent shall appear
before the trial Court on 28.07.2025 without
expecting notice from the trial Court.
vii. The trial Court shall proceed with the case
expeditiously.
viii. No order as to costs.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
PK
