[Cites 13, Cited by 0]
Karnataka High Court
Sri. Sudhakar vs Sri. Lakshman Verma on 6 February, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 9115 of 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 9115 OF 2025 (GM-CPC)
BETWEEN:
SRI. SUDHAKAR
S/O D. MANI
AGED ABOUT 38 YEARS,
R/AT #80, 10TH A CROSS,
1ST MAIN ROAD, MAHALAKSHMIPURAM
WEST OF CHORD ROAD
BANGALORE - 560086
...PETITIONER
(BY SRI. B MANJUNATH.,ADVOCATE)
AND:
1. SRI. LAKSHMAN VERMA
S/O LATE RAMDAUKAL
AGED ABOUT 42 YEARS,
2. SMT. POOJA VERMA
W/O LAKSHMAN VERMA
AGED ABOUT 35 YEARS
Digitally signed
by CHANDANA
BM R1 & R2 ARE R/AT NO. 63/4,
Location: High
Court of
3RD B MAIN ROAD, OPPOSITE TO VEERESH
Karnataka CONVENTION HALL
BANGALORE - 560079.
3. D. MANI
S/O LATE S. DORESWAMY
AGED ABOUT 68 YEARS
R/AT 21/F, 4TH N BLOCK
RAJAJINAGAR
BANGALORE - 10
...RESPONDENTS
(BY SRI. B. S. JEEVAN KUMAR.,ADVOCATE FOR R1;
R2 & R3 ARE SERVED)
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WP No. 9115 of 2025
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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER FOUND AT ANNX-A PASSED BY THE CITY CIVIL COURT AT
BANGALORE (CCH-15) IN MISC. NO. 1142/2023 DATED 01/03/2025.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
This petition by the respondent No.1 in Misc.No.1142/2023 is
directed against the impugned order dated 01.03.2025 passed by
the VIII Additional City Civil and Sessions Judge, Bengaluru,
whereby the memo filed by the petitioner for a direction to the trial
Court to conduct enquiry on the delay application before
proceeding to conduct enquiry on the merits of the miscellaneous
petition was rejected by the trial Court.
2. Heard learned counsel for the petitioner and learned
counsel for the respondent No.1 and perused the material on
record.
3. A perusal of the material law on record will indicate
that the petitioner and respondent No.3 herein instituted a suit in
O.S.No.528/2017 against the respondent Nos.1 and 2 for
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declaration, injunction and possession in relation to the suit
schedule immovable property. In the said suit, the respondent
Nos.1 and 2 - defendants were placed ex-parte and the suit
culminated in a judgment and decree dated 01.02.2020 decreeing
the suit in favour of the plaintiffs against the defendants and the
plaintiffs took possession of the suit schedule property from the
defendants in execution proceedings in which also the defendants
were placed ex-parte. Subsequently, the respondent Nos.1 and 2
were the defendants in the aforesaid O.S.No.528/2017 instituted
the instant Miscellaneous No.1142/2023 under Order IX Rule 13
CPC to set aside the ex-parte judgment and decree. In the said
miscellaneous proceedings, the respondent Nos.1 and 2 filed an
application under Section 5 of the Limitation Act seeking
condonation of delay in filing the miscellaneous petition. The said
miscellaneous petition as well as the application for condonation of
delay have been opposed by the plaintiffs, who are the
respondents in the miscellaneous petition.
4. During the pendency of the said miscellaneous
petition, the petitioner filed a memo to the effect that since there
was delay in filing the miscellaneous petition, enquiry has to be
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conducted on the application for condonation of delay before
proceeding to consider the main miscellaneous petition on merits.
The said memo filed by the petitioners having been opposed by the
respondent Nos.1 and 2, the trial court proceeded to pass the
impugned order disposing of the memo by coming to the
conclusion that the application for condonation of delay as well as
the main miscellaneous petition would be heard together by holding
as under:
ORDER ON MEMO
The respondent No.1 has filed a memo dated
14.11.2024 and sought to recall the order for considering the
main evidence without leading evidence on delay application
filed by the petitioners. The petitioners have filed objections
to the memo contending that the affidavit pertaining to the
evidence deals with the reason for delay and also on the
merits of the case and therefore, only to protract the
proceedings, the present memo is filed which is liable to be
dismissed.
2. Heard the arguments.
3. The point that arise for consideration is:-
Whether in the present case, the Court
can adjudicate both the question of delay
in filing the application as well as the
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main petition filed under Order IX, Rule
13 of the Code of Civil Procedure, 1908
together?
4. The answer to the above point is in the
affirmative for the following:-
REASONS
5. The main petition is filed by the petitioners
under Order IX, Rule 13 of the Code of Civil Procedure, 1908
for restoration of the ex-parte judgment and decree. The ex-
parte judgment came to be passed on 1.2.2020. The main
petition is filed for restoration on 25.9.2023. While filing the
main petition, interlocutory application No.I is filed for
condonation of three years and seven months of delay. After
appearance of the respondents, the petitioners have now
given the evidence on main petition as well as the ground of
delay. Though the petitioners have not specifically stated that
the evidence is on both aspects, the contents of the affidavit
shows that the evidence is also given for the delay caused in
filing the main petition. The learned Counsel appearing for
the respondent No.1 has strongly placed reliance on several
decisions including the decision of the Hon'ble Supreme
Court rendered in the case of Pathapati Subba Reddy (Died)
by L.Rs. and others versus The Special Deputy Collector
(LA) [Special Leave Petition (Civil) No.31248/2018 dated
8.4.2024] and Surendra G.Shankar and another versus
Esque Finamark Private Limited and others [Civil Appeal
No.928/2025 dated 22.1.2025] and contended that when the
statute has prescribed a specific procedure for condonation
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of the delay and when the law is well-settled that unless the
delay is condoned, the question of considering the main
petition does not arise and the petitioner cannot go for
enquiry on main petition and the Court cannot take up the
enquiry on the main petition without condoning the delay. As
rightly contended by the learned Counsel appearing for the
respondent No.1, normally when there is a delay and if the
delay is not condoned, the Court cannot take up the enquiry
on main petition. But, there is an exception. In the above said
decisions, it is not a petition filed under Order IX, Rule 13 of
the Code of Civil Procedure, 1908 and the question of delay
and the merits of the matter was not interlinked and
therefore, the said decisions are not helpful to the case of the
respondent No.1. In this regard, in the decision of Hon'ble
Supreme Court rendered in the case of Bhagmal and others
versus Kunwar Lal and others [2010 (12) SCC 159], the
Hon'ble Supreme Court has made it clear that when the
question of delay was completely interlinked with the merits
of the matter, the question of delay as well as merits of the
matter can be taken together and the Court can pass orders.
In other words, if the ingredients which are required for
condonation of delay is made out in the main petition under
Order IX, rule 13 of the Code of Civil Procedure, 1908, there
is not even a need to file separate application under Section
5 of the Limitation Act. In this regard, the decision of the
Hon'ble Supreme Court has specifically held as hereunder:-
"It is to be seen here that the question of
delay was completely interlinked with the merits
of the matter. The appellants/defendants had
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clearly pleaded that they did not earlier come to
the Court on account of the fact that they did not
know about the order passed by the Court
proceeding ex-parte and also the ex-parte decree
which was passed. It was further clearly pleaded
that they came to know about the decree when
they were served with the execution notice. This
was nothing, but a justification made by the
appellants /defendants for making the Order 9
Rule 13 application at the time when it was
actually made. This was also a valid explanation
of the delay. The question of filing Order IX Rule
13 application was, in our opinion, rightly
considered by the appellate Court on merits and
the appellate Court was absolutely right in to the
conclusion that coming appellants/defendants
were fully justified in filing the application under
Order IX Rule 13 CPC at the time when they
actually filed it and the delay in filing the
application was also fully explained on account of
the fact that they never knew about the decree
and the orders starting the ex-parte proceedings
against them. If this was so, the Court had
actually considered the reasons for the delay
also. Under such circumstances, the High Court
should not have taken the hypertechnical view
that no separate application was filed under
Section 5.
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13. The application under Order 9 Rule 13
CPC itself had all the ingredients of the application
for condonation of delay in making that application.
Procedure is after all handmaid of justice."
6. In the recent decision relied upon by the learned
Counsel appearing for the petitioners in the case of Dwarika
Prasad (D) thr. Lrs-versus- Prithvi Raj Singh [2024 SCC
OnLine SC 3828], the Hon'ble Supreme Court relied upon
the previous decision referred in the case of Bhagmal and
others versus Kunwar Lal and others [2010 (12) SCC 159)
and added that in a case of this nature, the Court should not
shut out cases on mere technicalities, but rather afford
opportunity to both the parties and thrash out the matter on
merits. The Hon'ble Supreme Court has further made it clear
that when the petitioners have specifically stated that they
never knew about the ex-parte decree right from the
institution of the suit until the decree was passed and until
the application came to be filed under Order IX, Rule 13 of
the Code of Civil Procedure, 1908, the non-filing of an
application under Section 5 of the Limitation Act and
recording a separate finding with regard to the condonation
of the delay is inconsequential and the Court can consider
both aspects together. In view of these reasons, the above
point is answered in the affirmative and the following order is
passed:-
ORDER
The question of delay in filing the petition
under Order IX, Rule 13 of the Code of Civil
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Procedure, 1908 and the merits of the main
petition under Order IX, Rule 13 of the Code of
Civil Procedure, 1908 will be considered
together for recording a finding."
5. Upon reconsideration, re-evaluation and
re-appreciation of the entire material on record, I am of the
considered opinion that the impugned order passed by the trial
Court directing the miscellaneous petition as well as the application
for condonation of delay to be decided together is in complete
consonance and conformity with the principles laid down by the
Hon'ble Apex Court in the case of Dwarika Prasad versus Prithvi
Raj Singh- 2024 INSC 1030, wherein it is held as under:
"1. Leave granted.
2. This appeal assails the final judgement and order
passed by Allahabad High Court in Writ Petition
No.18990/2024 on 24.05.2022 whereby the High Court
dismissed the Writ Petition and upheld the order of the
District Judge, Etah in Civil Revision No.53 of 2000. The
District Court, Etah ("Revisional Court") had allowed the
Civil Revision filed by Respondent Prithvi Raj Singh under
section 115 of Civil Procedure Code ("CPC") against the
order dated 29.04.2000 passed by Additional Civil Judge
(Junior Division) Kasganj ("Trial Court") in Civil
Miscellaneous Case No.33/1994. The Trial Court thereby
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had allowed the restoration application under Order IX Rule
13 and section 151 of CPC filed by the Appellant Dwarika
Prasad. The High Court has effectively dismissed the
restoration application, confirming the ex parte decree dated
11.04.1994 passed in favor of Respondent.
3. The facts leading to the present appeal are stated
below:
3.1. Respondent-Plaintiff Prithviraj Singh instituted a
civil suit registered as O.S. No.81 of 1988 seeking
declaration of a sale deed as null and void on the
ground of fraud played by the Appellant-defendant.
Plaintiff averred that his grandfather Shri Guljari Lal was
a bhumidhar with transferable rights of agricultural plot
No. 315 area 0.66 Hectare, situated at Itwarpur,
Pargana- Sahawar, District Etah and also of agricultural
plot No.141 area 0.34 Hectare situated at Village Bodha
Nagria. In the name of providing treatment, Appellant-
defendant Dwarika Prasad took the grandfather of
plaintiff to Kasganj. On 16.01.1979 the appellant got a
sale deed executed by his grandfather by way of fraud
in his favour.
3.2. The Court of First Additional Munsif, Kasganj, Etah
decreed the suit ex parte by order dated 11.04.1994 on
account of non-appearance of defendant and declared
the sale deed in question to be void and unenforceable.
3.3. The Appellant-defendant filed restoration
application under Order IX Rule 13 and Section 151 of
CPC on 31.10.1994. He stated that he was uneducated,
naïve and old aged person unable to understand Court
proceedings; he had put full faith in his previous counsel
Shri Ramgopal Singh. However, on 26.10.1994 the
Respondent and his brothers publicly said to the
Appellant that they have got the sale deed cancelled
and have also got the name of the Appellant removed.
As suspicion arose in the Appellant's mind, he
appointed Shri Ashok Kumar Verma as his counsel who
inspected the file in the Revenue Court, Kasganj. The
Appellant was informed about the ex parte decree, on
27.10.1994. The Counsel for the Appellant found copy
of the ex parte decree the next day on 28.10.1994.
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Accordingly, on 31.10.1994 the Appellant filed the
restoration application. The Appellant stated in the
application that his previous counsel Shri Ramgopal
Singh played fraud over him as he conspired with
Respondent.
4. The Trial Court allowed the restoration application
and set aside the ex parte decree by order dated
29.04.2000.\ It found that the Appellant is illiterate and he
has put thumb impressions wherever his counsel asked him
to put. He was kept unaware of the legal proceedings by the
previous counsel. Only after the revenue court rejected the
proceedings initiated by the Appellant for mutation, the new
counsel was appointed. As the new counsel came to know
about the ex parte decree, the restoration application has
been filed. The Trial Court thus held that the Appellant
cannot suffer due to errors of his counsel and it found it
justifiable to provide full opportunity of hearing to the
Appellant.
5. Thereafter on 10.05.2000, the Respondent filed
Revision (Civil Revision No.51 of 2000) under section 115
of CPC against the order of the Trial Court dated
29.04.2000. Respondent claimed that the restoration
application is time barred and the Appellant had knowledge
of ex parte decree since beginning. The Additional District
Judge at Etah allowed the Revision, holding that the
Appellant did not move the application under section 5 of
the Limitation Act, which is a mandatory requirement when
the application under Order IX Rule 13 of CPC is filed after
a considerable delay and such delay requires explanation.
Thus, the District Court, by order dated 17.02.2004, held
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that the order of the Trial Court was in violation of
mandatory provisions of law.
6. Aggrieved, the Appellant filed Writ Petition being
Civil Miscellaneous Writ Petition No.18990 of 2004 against
the order of the District Judge dated 17.02.2004. The
Appellant pleaded that the District Court has taken a hyper
technical approach in dismissing the restoration. Further, he
had clearly submitted in the restoration application that he
came to know about the ex parte decree on 28.10.1994 and
without further delay he filed restoration application on
31.10.1994. Thus, from the date of knowledge, the limitation
for filing the application will start. There was no requirement
of filing a separate application for condonation of delay as
the restoration application itself was not time barred.
7. The High Court by the impugned order dated
24.05.2022, dismissed the Writ petition filed by the
Appellant. The High Court has held that the limitation for
filing application under Order IX Rule 13 CPC is 30 days
and it starts running from the date of the decree. As the ex
parte decree was passed on 11.04.1994, the limitation for
filing the restoration application expired on 11.05.1994.
However, the application was filed by the Appellant on
31.10.1994, which is about five months after expiry of the
limitation. Since the application was filed beyond time, it
must be accompanied with an application under section 5 of
the Limitation Act praying for condonation of delay. As no
such application was filed by the Appellant, there was no
proper application under Order IX Rule 13 of CPC in the
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eye of law. Thus, the High Court held that the Addl. District
Judge was correct in allowing the Revision.
8. The Appellants preferred the Special Leave to
Appeal before this Court against the order of the High
Court. This Court has issued notice and granted six weeks'
time to file the counter affidavit on 20.07.2022. The
Respondent has not filed the counter affidavit till date. The
counsel for Respondent had put in appearance, way back in
October 2022. He was not present on multiple dates
including the last date, when this matter was heard on
09.12.2024.
9. We have heard learned counsel for the appellant
and perused the record. We are of the opinion that the High
Court has erred in upholding the order of the Additional
District Judge. The Trial Court had rightly allowed the
restoration application filed by the Appellant under Order IX
Rule 13 of CPC. It is well settled that Courts should not shut
out cases on mere technicalities but rather afford
opportunity to both sides and thrash out the matter on
merits. Further, we cannot let the party suffer due to
negligent or fault committed by their counsel. This principle
has been enunciated by this court in the case of Rafiq v.
Munshilal, quoted as follows:
"3. The disturbing feature of the case is that under
our present adversary legal system where the
parties generally appear through their advocates,
the obligation of the parties is to select his advocate,
brief him, pay the fees demanded by him and then
trust the learned Advocate to do the rest of the
things. The party may be a villager or may belong to
a rural area and may have no knowledge of the
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court's procedure. After engaging a lawyer, the
party may remain supremely confident that the
lawyer will look after his interest. At the time of the
hearing of the appeal, the personal appearance of
the party is not only not required but hardly useful.
Therefore, the party having done everything in his
power to effectively participate in the proceedings
can rest assured that he has neither to go to the
High Court to inquire as to what is happening in the
High Court with regard to his appeal nor is he to act
as a watchdog of the advocate that the latter
appears in the matter when it is listed. It is no part of
his job. Mr A.K. Sanghi stated that a practice has
grown up in the High Court of Allahabad amongst
the lawyers that they remain absent when they do
not like a particular Bench. Maybe, we do not know,
he is better informed in this matter. Ignorance in this
behalf is our bliss. Even if we do not put our seal of
imprimatur on the alleged practice by dismissing this
matter which may discourage such a tendency,
would it not bring justice delivery system into
disrepute. What is the fault of the party who having
done everything in his power expected of him would
suffer because of the default of his advocate. If we
reject this appeal, as Mr A.K. Sanghi invited us to
do, the only one who would suffer would not be the
lawyer who did not appear but the party whose
interest he represented. The problem that agitates
us is whether it is proper that the party should suffer
for the inaction, deliberate omission, or
misdemeanour of his agent. The answer obviously
is in the negative. Maybe that the learned Advocate
absented himself deliberately or intentionally. We
have no material for ascertaining that aspect of the
matter. We say nothing more on that aspect of the
matter. However, we cannot be a party to an
innocent party suffering injustice merely because his
chosen advocate defaulted. Therefore, we allow this
appeal, set aside the order of the High Court both
dismissing the appeal and refusing to recall that
order....."
10. In the present case, the appellant has trusted his
counsel to manage the suit proceedings. However, he was
not made aware of the ex-parte decree by his previous
counsel. It is only after the appointment of the new counsel,
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the appellant got to know about the ex-parte decree.
Therefore, the Additional Sessions Judge ought not to have
exercised the revisional jurisdiction in interfering with the
order of the Trial Court where it had exercised its discretion
in setting aside the ex-parte decree for justifiable reasons
accepting the reasons given by the defendant-appellant.
11. The Appellant has relied upon the following
judgments in support of his submissions. In Bhagmal and
Ors Vs. Kunwar Lal and Others this Court held as follows;
"12. It is to be seen here that the question of delay
was completely interlinked with the merits of the
matter. The appellant-defendants had clearly
pleaded that they did not earlier come to the court
on account of the fact that they did not know about
the order passed by the court proceeding ex parte
and also the ex parte decree which was passed. It
was further clearly pleaded that they came to know
about the decree when they were served with the
execution notice. This was nothing, but a
justification made by the appellant- defendants for
making Order 9 Rule 13 application at the time
when it was actually made. This was also a valid
explanation of the delay. The question of filing Order
9 Rule 13 application was, in our opinion, rightly
considered by the appellate court on merits and the
appellate court was absolutely right in coming to the
conclusion that the appellant-defendants were fully
justified in filing the application under Order 9 Rule
13 CPC at the time when they actually filed it and
the delay in filing the application was also fully
explained on account of the fact that they never
knew about the decree and the orders starting the
ex parte proceedings against them. If this was so,
the Court had actually considered the reasons for
the delay also. Under such circumstances, the High
Court should not have taken the hypertechnical view
that no separate application was filed under Section
5.
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13. The application under Order 9 Rule 13 CPC itself
had all the ingredients of the application for
condonation of delay in making that application.
Procedure is after all handmaid of justice."
12. From the above cases, it is clear that there was
no need to file a separate application for condonation of
delay in the present case as well. The High Court has erred
in taking a hyper technical view and concluding that there
was violation of mandatory provision of law. Endorsing such
a view would effectively mean ignoring the purpose of
judicial procedure. The procedure cannot stand in the way
of achieving just and fair outcome. In the present case, the
Appellant acted bona fide and diligently. His conduct does
not violate any rule of law.
13. In view of the above discussion, we allow this
appeal, set aside the impugned order dated 24.05.2022
passed by High Court, and allow the writ petition and
restore that of the Trial Court dated 29.04.2000. The Trial
Court to proceed with O.S. No.81 of 1988 in accordance
with law. As the suit is an old one, we further direct the Trial
Court to expedite hearing of the suit and make an
endeavour to decide the same within a year. It goes without
saying that parties to the suit shall extend all cooperation in
disposal of the suit.
14. There shall be no order(s) at to costs."
6. As can be seen from the material on record and the
principles laid down by the Hon'ble Apex Court in Dwarika
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Prasad's case supra, in order to avoid delay in disposal of the
proceedings, it would be just and appropriate to dispose of both the
miscellaneous petition and the application for condonation of delay
without conducting two separate enquiries on delay and on the
merits of the matter, since the trial Court has directed the
miscellaneous proceedings itself along with the application for
condonation of delay to be considered together, without expressing
any opinion on the merits of the claims of both sides. I do not find
that any prejudice would be caused to the petitioner warranting
interference by this Court in the exercise of its jurisdiction under
Article 227 of the Constitution of India as held by the Hon'ble Apex
Court in the cases of Radhey Shyam Vs. Chhabi Nath - (2015) 5
SCC 423, K.P. Natarajan Vs. Muthalammal - AIR 2021 SC 3443
and Mohammed Ali Vs. Jaya - (2022) 10 SCC 477.
7. In the result, I pass the following:
ORDER
i) The petition is hereby dismissed.
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ii) The trial Court is directed to dispose of the
miscellaneous petition within a period of 9 months from the date of
receipt of a copy of this order.
iii) All rival contentions on all aspects of the matter are
kept open and no opinion is expressed on the same.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
MDS
List No.: 1 Sl No.: 4
