- 1 - 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 3. S HARISH S/O SADASHIVIAH AGED ABOUT 62 YEARS PRESENTLY R/AT NO.121/A 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 Digitally signed by LEELAVATHI S R Location: High Court of Karnataka - 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. - 3 - NC: 2025:KHC:10885 RFA No. 318 of 2024 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?’ - 4 - NC: 2025:KHC:10885 RFA No. 318 of 2024 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 / - 5 - NC: 2025:KHC:10885 RFA No. 318 of 2024 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 - 6 - NC: 2025:KHC:10885 RFA No. 318 of 2024 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; - 7 - NC: 2025:KHC:10885 RFA No. 318 of 2024 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 / - 8 - NC: 2025:KHC:10885 RFA No. 318 of 2024 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 BS - List No.: 1 Sl No.: 12