- 1 - NC: 2025:KHC-K:1545 RSA No. 200188 of 2024 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.200188 OF 2024 (INJ) BETWEEN: 1. ITGAR MARUTI S/O SHETTEPPA, AGED ABOUT 49 YEARS, OCC: BUSINESS, R/O SURVEY NO.5, VAKKALGERA ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. 2. ITGAR HANAMANTH S/O AGED ABOUT 44 YEARS, OCC: BUSINESS, R/O SY. NO.5, VAKKALGERA, ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. 3. MAHADEVI W/O RAMESH, AGED ABOUT MAJOR, OCC: COOLIE, R/O SURVEY NO.5, VAKKALGERA, ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. 4. ASHOK S/O RAMESH, AGED ABOUT MAJOR, OCC: COOLIE, R/O SY. NO.5, VAKKALGERA, ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. 5. NAGESH S/O RAMESH, AGED ABOUT MAJOR, OCC: COOLIE, R/O SY. NO.5, VAKKALGERA, ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. 6. GEETA D/O RAMESH, SINCE MINOR U/G OF HER NATURAL MOTHER, MAHADEVI W/O RAMESH, R/O SY. NO.5, VAKKALGERA, ASIF GUNJ, Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1545 RSA No. 200188 of 2024 FILTER BED ROAD, KALABURAGI-585 104. 7. LAXMI BAI W/O BHIMA, AGE: MAJOR, OCC: COOLIE, R/O SY. NO.5, VAKKALGERA, ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. 8. USHA D/O BHIMA, SINCE MINOR U/G NATURAL MOTHER, LAXMI BAI W/O BHIMA, R/O SY. NO.5, VAKKALGERA, ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. 9. SHIVAKUMAR S/O BHIMA, SINCE MINOR U/G NATURAL MOTHER, LAXMI BAI W/O BHIMA, R/O SY. NO.5, VAKKALGERA, ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. …APPELLANTS (BY SRI. RAVI B. PATIL, ADVOCATE) AND: 1. SMT. PUTALABAI D/O LATE SHANKARAPPA W/O SANJU, AGED ABOUT 44 YEARS, OCC: HOUSEHOLD, R/O H.NO.9-882/383, SULTANPUR ROAD, NEAR AMBABAI DEVALAUYA, ASHRAYA COLONY, KALABURAGI-585 104. 2. SURESH S/O LATE SHANKARAPPA, AGED ABOUT 50 YEARS, OCC: BUSINESS, R/O H.NO.9-882/383, SULTANPUR ROAD, NEAR AMBABAI DEVALAUYA, ASHRAYA COLONY, KALABURAGI-585 104. 3. MARUTI S/O BHIMSHA DHOTRE, AGED ABOUT 46 YEARS, OCC: BUSINESS, R/O SY. NO.5, VAKKALGERA, ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. - 3 - NC: 2025:KHC-K:1545 RSA No. 200188 of 2024 4. KRISHNA S/O BHIMSHA DHOTRE, AGED ABOUT 46 YEARS, OCC: BUSINESS, R/O SY. NO.5, VAKKALGERA, ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. 5. LACHCHAPPA S/O BALAYYA, AGED ABOUT 43 YEARS, OCC: BUSINESS, R/O SY. NO.5, VAKKALGERA, ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. 6. RUKMINI W/O TIKALE, AGED ABOUT 42 YEARS, OCC: HOUSEHOLD, R/O SY. NO.5, VAKKALGERA, ASIF GUNJ, FILTER BED ROAD, KALABURAGI-585 104. …RESPONDENTS (BY SRI RAMACHANDRA K. FOR SRI GURUBASAVA NAYAK, ADVS. FOR R1 AND R2) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE FIRST APPELLATE COURT IN R.A. NO.83/2023 DATED 20.02.2024 PASSED BY THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AT KALABURAGI, THEREBY SET ASIDE THE JUDGMENT AND DECREE OF THE TRIAL COURT IN O.S. NO.163/2020 DATED 09.03.2023 PASSED BY THE COURT OF PRINCIPAL CIVIL JUDGE AND JMFC AT KALABURAGI AND CONSEQUENTLY TO DISMISS THE SUIT OF THE RESPONDENTS/PLAINTIFFS IN ENTIRETY. THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 4 - NC: 2025:KHC-K:1545 RSA No. 200188 of 2024 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) Heard the learned counsel for the appellants and the learned counsel for the respondents. 2. This appeal is against the concurrent finding in a suit for injunction and mandatory injunction. The suit is decreed holding that the plaintiffs are in possession of the property pursuant to unregistered agreement for sale dated 15.05.1988. The plaintiffs claim that the possession is transferred pursuant to the agreement for sale and they are in possession of the suit property. The defendants remained ex parte before the trial court. As such, there was no contest by the defendants. Based on the evidence led by the plaintiffs, the trial court found that the plaintiffs are in possession of the suit property and passed a decree for injunction and directed to the defendants to remove the unauthorized and illegal laying of stones in the suit property within two months from the date of passing of the decree. 3. The defendants filed appeal before the first appellate court and took a stand that notice is not served on - 5 - NC: 2025:KHC-K:1545 RSA No. 200188 of 2024 them and filed an application to condone the delay in filing the appeal and also filed an application under Order 41 Rule 27 of CPC seeking production of additional documents to substantiate their claim. 4. The first appellate court dismissed the application to condone the delay of 206 days in filing the appeal and also dismissed the application seeking production of additional document on the premise that the defendants have not filed written statement seeking leave of the court and thereby refused to look into the additional evidence and consequently the concurred finding of the trial court. 5. Learned counsel for the defendants/appellants would submit that the suit summons were not properly served on the defendants. The defendants after coming to know about the ex parte decree filed an appeal along with an application to condone the delay of 206 days in filing the appeal. In addition, the defendants also filed an application seeking to produce documents to show that the properties have been acquired by the competent authority and the sites have been allotted to some of third parties. - 6 - NC: 2025:KHC-K:1545 RSA No. 200188 of 2024 6. It is the contention of the learned counsel for the appellants that the application for condonation of delay could not have been dismissed as there was 206 days delay on account of the fact that the suit summons were not properly served. 7. It is further submitted that the documents could not have been rejected on the premise that the defendants have not filed written statement before the first appellate court. Thus, he urged that matter be remitted back to the trial court for consideration afresh. 8. Learned counsel for the respondents/plaintiffs on the other hand, would contend that despite service of suit summons to the appellants/defendants they did not appear before the trial court and all the defendants refused to receive the suit summons sent by the trial court and thereafter did not contest the matter. Even before the first appellate court, the defendants did not file written statement though they sought the leave of the court to produce additional documents. The first appellate court rightly rejected the application seeking production of additional documents on the premise that the - 7 - NC: 2025:KHC-K:1545 RSA No. 200188 of 2024 written statement is not filed. It is further submitted by the learned counsel for the respondents that delay of 206 days is not properly explained in filing the appeal. Hence, he would submit that no substantial question of law would arise in this case and prayed to dismiss the appeal. 9. This court has considered the contentions raised at the Bar and perused the records. 10. The following substantial question of law would arise for consideration: i) Whether the first appellate court is justified in dismissing the application for condonation of delay of 206 days in filing the appeal? ii) Whether the first appellate court is justified in rejecting the application for production of additional documents on the premise that the written statement is not filed? 11. As far as the application for condonation of delay of 206 days being dismissed, it is to be noticed that the application for condonation of delay has to be construed - 8 - NC: 2025:KHC-K:1545 RSA No. 200188 of 2024 liberally. The case on hand pertains to immovable property. Along with the appeal, the appellants have also filed an application for production of documents which prima facie indicate that the lands in dispute have been acquired by the competent authority. Under these circumstances, the appellants have made out a case for hearing the matter on merits. This being the position, the first appellate court could not have rejected the application to condone the delay of 206 days especially in a situation when the decree is ex parte and appellants contend that notice was not properly served. Nevertheless the first appellant court has considered the appeal on merits. Hence, for these reasons, this court is of the view that the application for condonation of delay has to be allowed. 12. Sofar as the finding of the first appellate court that written statement is not filed as such there is no need to consider the additional documents, the said finding appears to be logical to an extent, but what is required to be noticed is that the documents sought to be produced are the relevant public documents. Hence, under these circumstances, the appellants have made out a case to consider the case on merits by considering those documents. - 9 - NC: 2025:KHC-K:1545 RSA No. 200188 of 2024 13. This court is of the view that application could not have been rejected considering the fact that the trial court has passed an ex parte decree where the complete facts are not brought to the notice of the court. Hence, the finding of the first appellant court that the application could not be considered for want of written statement by the appellants has to be set aside. 14. Noticing the fact that there is no written statement, permitting the appellants to file written statement, by imposing the cost, the matter can be remitted to the trial court directing the appellants/defendants to file written statement within a specific period. Under these circumstances, this court is of the view that in the interest of justice, the order rejecting the application for production of additional document has to be set aside. 15. As already noticed, the dispute is relating to an immovable property. The appellants before this court and also one of the appellants before the first appellate court raised the contention that the property in question is acquired and the plaintiffs have no right over the property. It is further noticed that the plaintiffs who claiming to be in possession based on - 10 - NC: 2025:KHC-K:1545 RSA No. 200188 of 2024 agreement for sale and admittedly suit for specific performance is not filed. Under these circumstances, the impugned judgment and decree have to be set aside and the matter has to be remitted to the trial court for consideration afresh. 16. As rightly contended by the learned counsel for the respondents, the appellants’ have to be put on terms on account of appellants default, the respondents are put to inconvenience and had to face two rounds of litigation before the first appellate court and before this court. It is also noticed there is delay on the part of the defendants to file written statement. Under these circumstances, the appellants shall pay the cost of Rs.30,000/- to the respondents which condition will be the condition precedent for filing written statement before the trial court and on such payment cost of Rs.30,000/-, the appellants are permitted to contest the matter by filing written statement. 17. Hence, the following: ORDER i) The appeal is allowed. ii) The impugned judgment and decree dated 20.02.2024 passed by the III Addl. Senior Civil - 11 - NC: 2025:KHC-K:1545 RSA No. 200188 of 2024 Judge, Kalaburagi in RA No.83/2023 and also the judgment and decree dated 09.03.2023 in O.S.No.163/2020 passed by the Principal Civil Judge, Kalaburagi are set aside and the matter is remitted to the trial court for fresh consideration. iii) The appellants shall pay cost of Rs.30,000/- to the respondents within (03) three days from the date of appearance and also file written statement within (03) three days from the date of appearance, failing which the right to file written statement stands forfeited. iv) The parties shall appear before the trial court on 15.04.2025 without any further notice. v) It is made clear that this court has expressed nothing on the merits of the case. vi) All contentions are kept open. Sd/- (ANANT RAMANATH HEGDE) JUDGE BL List No.: 1 Sl No.: 34 CT: AK