- 1 - HC-KAR NC: 2025:KHC:23876 MSA No. 33 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH MISCELLANEOUS SECOND APPEAL NO.33 OF 2025 (RO) BETWEEN: 1. SRI. K.RAGHU, S/O KRISHNA REDDY, AGED ABOUT 53 YEARS, R/AT CKR TOWER, HOUSE NO.8, SARAKKI MAIN ROAD, J.P. NAGARA 1ST STAGE, BENGALURU-560 078. …APPELLANT (BY SRI. NANDISH GOWDA G.B., ADVOCATE) AND: 1. SRI. GURUSWAMY, S/O LATE SHIVANNA, AGED ABOUT 67 YEARS. 2. SRI. G. SRINIVASA, S/O LATE. GURUSWAMY, SINCE DECESASED BY HIS LR'S. SMT. PUSHPA, W/O LATE. SRINIVASA, AGED ABOUT 41 YEARS. 3. KUMARI DEEKSHITHA S., D/O LATE SRINIVASA, AGED ABOUT 17 YEARS. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:23876 MSA No. 33 of 2025 4. MASTER SHASHANK S., S/O LATE SRINIVASA, AGED ABOUT 13 YEARS. THE RESPONENTS NO.3 AND 4 ARE MINORS, REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN RESPONDENT NO.2. ALL ARE R/AT DODDINDAWADI VILLAGE, KOLLEGALA TALUK, CHAMRAJANAGARA DISTRICT-571440. …RESPONDENTS (BY SRI. RAMESHA M.S., ADVOCATE FOR R1 AND R2; R3 AND R4 ARE MINORS AND REP BY R2) THIS MSA IS FILED UNDER SECTION 43 RULE (1)(u) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 26.11.2024 PASSED IN R.A.NO.5070/2023 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA (SITTING AT KOLLEGALA), ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 08.07.2013 PASSED IN O.S.NO.327/2012 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, KOLLEGALA, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT. THE CASE IS REMANDED BACK TO THE TRIAL COURT. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:23876 MSA No. 33 of 2025 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the respondents. 2. Having perused the judgment of the Trial Court, the suit for the relief of specific performance was decreed and the same was challenged by the legal representatives of defendant No.2. The main contention of the defendants before the First Appellate Court is that no notice was served on the defendants before the Trial Court in O.S.No.327/2012 and only an advocate appeared and undertook to file the Vakalath. The First Appellate Court having considered the grounds which have been urged in the appeal, in paragraph No.13 taken note of that though one advocate Sri S.S.B. undertakes to file vakalath for the defendants, he did not choose to file the vakalath and even when there was no any documentary evidence with regard to the service of notice against the defendants, the Trial Court proceeded to pass the judgment exparte against the defendants without service of notice. Hence, the First Appellate Court comes to the conclusion that the very placing the defendants as exparte - 4 - HC-KAR NC: 2025:KHC:23876 MSA No. 33 of 2025 without giving any opportunity and also without service of notice is an erroneous order. Only an undertaking was given by the advocate and he did not file the vakalath and only on oral submission, the Trial Court passed the exparte order against the defendants. The First Appellate Court noticed that when summons were not issued and the counsel, who undertook to file vakalath not appeared and did not file the vakalath and did not intimate about the defendants to the Court, the Trial Court ought to have issued fresh summons to the defendants or at least the Trial Court ought to have issued Court notice to the defendants, but without issuance of notice, proceeded to pass the order. Hence, the First Appellate Court comes to the conclusion that when there was no service of notice in the original suit, the matter requires remand by setting aside the order of the Trial Court to give an opportunity to both the sides and decide the matter in issue. The said order has been challenged before this Court. 3. The learned counsel for the appellant before this Court would vehemently contend that even though no notice was served in the original suit, when execution petition was filed, notice was served on the respondents and the - 5 - HC-KAR NC: 2025:KHC:23876 MSA No. 33 of 2025 respondents also appeared through the counsel and the very counsel who undertook to appear in the Trial Court has filed the vakalath. 4. This Court had directed the learned counsel for the appellant to produce the copy of the vakalath and the learned counsel took time to produce the vakalath, but not placed on record. However, taking into note of when there was no any service of notice in the original suit against the respondents and only on the undertaking of the advocate, the Trial Court ought not to have proceeded and passed exparte judgment against the respondents. Having perused the reasoning given by the Trial Court, the First Appellate Court rightly observed that without service of notice to the respondents, the Trial Court proceeded to pass the order and also advocate who undertook to file the vakalath did not file the vakalath. When such being the case and when the exparte judgment was passed against the respondents, I do not find any error committed by the First Appellate Court in setting aside the order of the Trial Court and remanding the matter to the Trial Court to proceed in the matter and direction was also given to appear before the Trial Court on - 6 - HC-KAR NC: 2025:KHC:23876 MSA No. 33 of 2025 16.12.2024. It was also made clear that time for filing of the written statement shall start from that date. Having perused the records, this Court found that there are no reasons to interfere with the findings of the First Appellate Court and reasoned order has been passed. There cannot be any decree of specific performance without giving an opportunity to the respondents and no material is placed before the Court that the respondents have been served before the Trial Court and hence I do not find any ground to interfere with the judgment of the First Appellate Court. 5. In view of the discussions made above, I pass the following: ORDER (i) The appeal is dismissed. (ii) The parties are directed to appear before the Trial Court on 01.08.2025, without expecting any notice from the Trial Court. (iii) The respondents herein is directed to file the written statement within one month from 01.08.2025. - 7 - HC-KAR NC: 2025:KHC:23876 MSA No. 33 of 2025 (iv) The Trial Court is directed to proceed in accordance with law and dispose of the suit within six months from 01.08.2025. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 51