Karnataka High Court
S Vijay Chandra vs S Krupal on 17 March, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2025:KHC:10885
RFA No. 318 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 318 OF 2024 (INJ)
BETWEEN:
1. SRI S VIJAY CHANDRA
S/O LATE A SADASHIVIAH
AGED ABOUT 64 YEARS
PRESENTLY R/AT 1182,
3RD FLOOR,
18TH B MAIN, 5TH BLOCK,
RAJAJINAGAR
BENGALURU-560010
2. SRI B S LOKESH
S/O LATE A SADASHIVIAH
AGED ABOUT 66 YEARS
PRESENTLY R/AT NO.4(G-4) ,
12TH A CROSS
ARCHANA APARTMENTS
MARGOSSA ROAD
MALLESHWARAM
BENGALURU-560003
Digitally
signed by
LEELAVATHI S 3. S HARISH
R S/O SADASHIVIAH
Location: High AGED ABOUT 62 YEARS
Court of PRESENTLY R/AT NO.121/A
Karnataka
6TH MAIN ROAD, 4TH BLOCK
BASAVESHWARANAGAR
BANGALORE-560079
...APPELLANTS
(BY SRI. VEDACHALA M V, ADVOCATE)
AND:
S KRUPAL
S/O SHIVAIAH
AGED ABOUT 58 YEARS
-2-
NC: 2025:KHC:10885
RFA No. 318 of 2024
R/O NO.85, ABBIGERE
CHIKKABANAWARA POST
BENGALURU NORTH TALUK
BENGALURU-560010
...RESPONDENT
(BY SRI. NARASIMHARAJU, ADVOCATE FOR R1)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 05.12.2023 PASSED IN
OS.NO.120/2023 ON THE FILE OF THE XXXV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT
FOR INJUNCTION AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
1. This appeal by the appellants / defendants in
O.S.No.120/2023 on the file of the XXXV Additional and City Civil
and Sessions Judge, Bengaluru is directed against the impugned
judgment and decree dated 05.12.2023 whereby the said suit filed
by the respondent / plaintiff for permanent injunction and other
reliefs against the appellants / defendants in relation to suit
schedule immovable property was decreed ex-parte in favour of the
respondent /plaintiff against the appellants/defendants.
2. Heard the learned counsel for the appellants and learned
counsel for the respondent.
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3. A perusal of the material on record will indicate that the
respondent/plaintiff instituted the aforesaid suit against the
appellants/defendants for permanent injunction and other reliefs in
relation to the suit schedule immovable property. The Trial Court
having issued suit summons on the appellants/ defendants which
were not served, the respondent / plaintiff got issued paper
publication, despite which, the appellants/defendants did not
appear before the Trial Court which was constrained to proceed
further and after permitting the respondent/plaintiff to examine
himself and marking documentary evidence at Ex.P.1 to Ex.P.69,
the Trial Court proceeded to pass the impugned judgment and
decree decreeing the suit in favour of the respondent/plaintiff
against the appellants /defendants who are before this Court by
way of the present appeal.
4. The only point that arises for consideration in the present
appeal is as to 'whether the appellants/defendants have made out
sufficient cause for their non appearance before the Trial Court
which culminated in the impugned judgement and decree passed
by the Trial Court?'
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5. Learned counsel for the appellants / defendants submits that
in the first instance, the suit summons / Court notice issued by the
Trial Court was never received by the appellants/defendants before
the Trial Court and as such, they could not appear in the suit or
contest the same on merits in accordance with law. It is also
pointed out that the respondent / plaintiff took out paper publication
in Kannada Prabha, Kannada Daily News Paper, of which the
appellants / defendants were not aware and consequently, the
appellants / defendants could not appear before the Trial Court
subsequent to issuance of paper publication and contest the suit
since they were completely unaware of the suit or the orders
passed by the Trial Court. It is submitted that the appellants /
defendants have an excellent /good case on merits, if an
opportunity is provided, the appellants /defendants would file their
written statement and contest the suit on merits and the impugned
judgment and decree may be set aside and the matter remitted
back to the Trial Court for reconsideration afresh in accordance
with law.
6. Per contra, learned counsel for the respondent / plaintiff
submit that despite sufficient efforts made by the respondent /
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plaintiff including taking out paper publication, the appellants/
defendants who were watching the proceedings throughout
deliberately refuse to appear before the Trial Court in the suit and
consequently, the Trial Court was fully justified in proceeding to
decree the suit ex-parte against the appellants/ defendants who are
not entitled to any relief in the present appeal which is liable to be
dismissed.
7. A perusal of the material on record would indicate that the
very undisputed fact that the respondent /plaintiff was unable to
serve the appellants/ defendants in the normal course resulted in
the respondent / plaintiff filing an application under Order 5 Rule 20
CPC for permission to takeout paper publication as against the
appellants / defendants, who according to them were not aware of
the pendency of the suit since they were not subscribers / readers
of Kannada Prabha Daily News Paper in which the paper
publication was said to have been published. It is also pertinent to
note that the appellants / defendants had completely remained ex-
parte before the Trial Court and neither engaged the services of a
counsel nor had they filed any written statement nor cross-
examined PW.1 or adduced any defence evidence. Under these
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circumstances, by adopting a liberal / justice oriented approach and
having regard to the nature of dispute involving valuable
possessory and proprietary rights over immovable property, I deem
it just and appropriate to provide one more opportunity in favour of
the appellants / defendants by setting aside the impugned
judgment and decree and remitting the matter back to the Trial
Court for reconsideration afresh in accordance with law as
expeditiously as possible. Hence, the following
ORDER
i. Appeal is hereby allowed;
ii. The impugned judgement and decree is
hereby set aside subject to the appellants /
defendants paying cost of `10,000/- to the
respondent / plaintiff before the Trial Court on
21.04.2025;
iii. The matter is remitted back to the Trial Court
for reconsideration afresh in accordance with law;
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iv. The appellants / defendants and respondent /
plaintiff undertake to appear before the Trial Court
without awaiting further notice on 21.04.2025;
v. The appellants/ defendants are directed to file
their written statement, objections, counter affidavit,
documents etc, in the Trial Court on 21.04.2025
without seeking any adjournment under any
circumstance whatsoever.
vi. Liberty is reserved in favour of the respondent
/ plaintiff to file additional pleadings, documents etc.,
before the Trial Court after the appellants /
defendants filing their pleading documents as stated
supra;
vii. Liberty is reserved in favour of the appellants /
defendants to cross-examine PW.1 and any other
witness to be examined by the respondent / plaintiff;
viii. Liberty is also reserved in favour of the
appellants / defendants as well as the respondent /
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plaintiff to adduce additional oral and documentary
evidence in support of their respective claims;
ix. All rival contentions on all aspects of the
matter are kept open and no opinion is expressed
on the same;
x. The Trial Court is directed dispose of the suit
afresh in accordance with law as expeditiously as
possible and both parties are directed to cooperate
with the Trial Court for expeditious disposal of the
suit.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
