- 1 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR REGULAR FIRST APPEAL NO.811 OF 2025 (PAR/DEC) C/W REGULAR FIRST APPEAL NO.813 OF 2025 IN RFA No.811/2025 BETWEEN: M/S H.M. CONSTRUCTIONS A PARTNERSHIP FIRM, HAVING OFFICE AT NO.14, CUNNINGHAM ROAD, BENGALURU - 560 052. REPRESENTED BY ITS PARTNERS MR. H.J. SIWANI AND MR. M. J. SIWANI …APPELLANT (BY SRI. S. SREEVATSA, SENIOR ADVOCATE FOR SRI. SYED KHAMRUDDIN, ADVOCATE) AND: 1. GOWRAMMA SINCE DECEASED BY HER LR. SMT. ANJINAMMA D/O LATE GOWRAMMA, W/O RAMAIAH, AGED ABOUT 49 YEARS, R/AT CHIKKANAHALLI VILLAGE, NANDAGUDI HOBLI, HOSAKOTE, BENGALURU RURAL - 562 114. Digitally signed by ARUNKUMAR M S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 2. SMT. MUNITHAYAMMA D/O LATE DODDAPILLAPPA W/O MUDDAPPA AGED ABOUT 68 YEARS, R/AT HEMARANAHALLI VILLAGE, JANGAMAKOTE HOBLI, SIDDALAGHATA TALUK, CHIKKABALLAPURA DISTRICT - 562 108. 3. SMT. KEMPAMMA D/O LATE DODDAPILLAPPA, W/O ASHWATHAPPA AGED ABOUT 67 YEARS, R/AT NO.539, NEW NO.52, SUMANGALI SEVA ASHRAMA ROAD, DODDA KENCHAPPA LAYOUT, R.T. NAGAR POST, BENGALURU - 560 032. 4. SRI. MUNIYAPPA S/O LATE DODDAPILLAPPA, AGED ABOUT 74 YEARS. 5. SRI. RAJANNA S/O LATE DODDAPILLAPPA, AGED ABOUT 66 YEARS. 6. SRI. RAMAIAH S/O LATE DODDAPILLAPPA, AGED ABOUT 62 YEARS. 7. SRI. SHIVAPPA S/O LATE DODDAPILLAPPA, AGED ABOUT 57 YEARS. 8. SRI. CHIKKAMUNIYAPPA S/O LATE DODDAPILLAPPA, AGED ABOUT 54 YEARS. RESPONDENTS NO.4 TO 8 ARE R/AT ANANTHAPURA VILLAGE, BENGALURU NORTH TALUK, BENGALURU - 560 038. - 3 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 9. SRI. ABDUL SALAM S/O MR. ABDUL GAFFAR, AGED ABOUT 70 YEARS, R/AT KRISHNARAJAPURAM, BENGALURU EAST TALUK, BENGALURU - 560 036. REP. BY HIS G.P.A. HOLDER, A. ABDUL RAFEEKH, AGED ABOUT 70 YEARS, S/O ABDUL RAHIM SAB, R/AT NO.300, 100 FEET ROAD, INDIRANAGAR, BENGALURU - 560 038. …RESPONDENTS (BY SRI. MANJUNATHA REDDY T., ADVOCATE FOR C/R1 TO R3) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 25.02.2021 PASSED IN ORIGINAL SUIT NO.1792/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DECREEING THE SUIT FOR PARTITION AND DECLARATION. IN RFA NO. 813/2025 BETWEEN: M/S H.M. CONSTRUCTIONS A PARTNERSHIP FIRM, HAVING OFFICE AT NO.14, CUNNINGHAM ROAD, BENGALURU - 560 052. REP. BY ITS PARTNERS MR. H.J. SIWANI AND MR. M.J. SIWANI. ...APPELLANT (BY SRI. S. SREEVATSA, SENIOR ADVOCATE FOR SRI. SYED KHAMRUDDIN, ADVOCATE) - 4 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 AND: 1. GOWRAMMA SINCE DECEASED BY HER LR. SMT. ANJINAMMA D/O LATE GOWRAMMA, W/O TAMAIAH, AGED ABOUT 49 YEARS, R/AT CHIKKANAHALLI VILLAGE, NANDAGUDI HOBLI, HOSAKOTE, BENGALURU RURAL - 562 114. 2. SMT. MUNITHAYAMMA D/O LATE DODDAPILLAPPA W/O MUDDAPPA AGED ABOUT 68 YEARS, R/AT HEMARANAHALLI VILLAGE, JANGAMAKOTE HOBLI, SIDDALAGHATA TALUK, CHIKKABALLAPURA DISTRICT - 562 108. 3. SMT. KEMPAMMA D/O LATE DODDAPILLAPPA, W/O ASHWATHAPPA, AGED ABOUT 67 YEARS, R/AT NO.539, NEW NO.52, SUMANGALI SEVA ASHRAMA ROAD, DODDA KENCHAPPA LAYOUT, R.T. NAGAR POST, BENGALURU - 560 032. 4. SRI. MUNIYAPPA S/O LATE DODDAPILLAPPA, AGED ABOUT 74 YEARS. 5. SRI. RAJANNA S/O LATE DODDAPILLAPPA, AGED ABOUT 66 YEARS. 6. SRI. RAMAIAH S/O LATE DODDAPILLAPPA, AGED ABOUT 62 YEARS. - 5 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 7. SRI. SHIVAPPA S/O LATE DODDAPILLAPPA, AGED ABOUT 57 YEARS. 8. SRI. CHIKKAMUNIYAPPA S/O LATE DODDAPILLAPPA, AGED ABOUT 54 YEARS. RESPONDENTS NO.4 TO 8 ARE R/AT ANANTHAPURA VILLAGE, BENGALURU NORTH TALUK, BENGALURU - 560 038. 9. SRI. ABDUL SALAM S/O MR. ABDUL GAFFAR, AGED ABOUT 70 YEARS, R/AT KRISHNARAJAPURAM, BENGALURU EAST TALUK, BENGALURU - 560 036. REP. BY HIS G.P.A. HOLDER, A. ABDUL RAFEEKH, AGED ABOUT 70 YEARS, S/O ABDUL RAHIM SAB, R/AT NO.300, 100 FEET ROAD, INDIRANAGAR, BENGALURU - 560 038. ...RESPONDENTS (BY SRI. MANJUNATHA REDDY T., ADVOCATE FOR C/R1 TO R3) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE ORDER DATED 23.08.2023 PASSED IN F.D.P. NO.42/2022 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE PETITION FILED UNDER ORDER XX RULE 18 AND 12 OF THE CODE OF CIVIL PROCEDURE. - 6 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL JUDGMENT In Regular First Appeal No.811 of 2025, the appellant is challenging the judgment and decree dated 25.02.2021 passed in O.S. No.1792 of 2013 on the file of the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru (for short, 'Trial Court'), wherein the suit of the respondents 1 to 3 herein came to be decreed in their favour. 2. In Regular First Appeal No.813 of 2025, the appellant is challenging the order dated 23.08.2023 passed in F.D.P. No.42 of 2022 on the file of the Trial Court, wherein the petition filed by the respondents 1 to 3 under Order XX Rule 18 and 12 of the Code of Civil Procedure to pass final decree as per the judgment and decree dated 25.02.2021 passed in Original Suit No.1792 of 2013 on the file of the Trial Court came to be allowed. 3. The Appellant in both these Regular First Appeals is M/s. H.M. Constructions, a partnership firm represented by its partners, which is not a party either in preliminary decree proceedings or in final decree proceedings. - 7 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 4. Heard learned Senior Counsel for the appellant and learned counsel for respondents 1 to 3 in both the appeals and perused the material on record. 5. Since, no relief is sought for against the respondents 4 to 9 in both the appeals, notice to respondents 4 to 9 is dispensed with for the purpose of disposal of these appeals. 6. With the consent of both sides, though the matter is posted for admission along with interlocutory applications, both the appeals are taken-up for final disposal with a common order/judgment. 7. A perusal of the material on record will indicate that the respondents 1 to 3 in both the appeals are daughters of one late Doddapillappa, who instituted O.S.No.1792 of 2013 against their brothers respondents 1 to 5 and one Sri. Abdul Salam respondent No.6. The brothers of respondents 1 to 3 herein were arraigned as defendants 1 to 5 while, the aforesaid Sri. Abdul Salam was arraigned as defendant No.6 in the suit. The said suit filed by the respondents 1 to 3 herein was one for partition and declaration of the alleged share in the suit schedule immovable property and other reliefs. It is a matter of record and undisputed fact that all the defendants including Defendant No.6-Abdul Salam were placed ex-parte before the Trial Court and they did not contest the suit. - 8 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 8. The respondent/plaintiff No.2-Munithayamma was examined as PW-1 and two others were examined as PW-2 and PW-3 and documentary evidence as Exhibits P1 to P8 were marked on behalf of the plaintiffs. As stated above, defendants 1 to 6 were placed ex-parte and they neither cross-examined the plaintiff No.2/PW-1 nor adduced any defendants evidence, as a result of which, the Trial Court proceeded to pass the impugned judgment/preliminary decree dated 25.02.2021, in O.S.No.1792 of 2013 declaring that the plaintiffs are together entitled to one-eighth share in the suit schedule property and that the Sale Agreement dated 15.01.1987 and Sale Deed dated 28.01.1995 executed in favour of the defendant No.6 are not binding on the plaintiffs and issued other directions. 9. In pursuance of the aforesaid preliminary decree dated 25.02.2021 passed in O.S. No.1792 of 2013, respondents 1 to 3 instituted in F.D.P. No.42 of 2022 before the Trial Court, in which the defendants 1 to 5 entered appearance while defendant No.6-Abdul Salam was placed ex-parte. The defendants 1 to 5, did not contest the proceedings thereby resulting in the Trial Court allowing the Final Decree Proceedings, by impugned final decree dated 23.08.2023. 10. The appellant herein M/s. H.M. Constructions in both the appeals has put forth various contentions in the present appeals inter alia contending that, much prior to the institution of O.S. No.1792 of 2013 before the Trial Court, the appellant had purchased the suit schedule - 9 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 property vide registered Sale Deed dated 08.07.2004 from defendant No.6-Abdul Salam and the appellant herein having not been made a party either in preliminary decree proceedings or in final decree proceedings, there is delay in approaching this Court by way of present appeals. 11. It is submitted by learned Senior Counsel for the appellant that the vendor of the appellant Sri. Abdul Salam, who remained ex-parte both in preliminary decree proceedings and final decree proceedings, did not intimate the appellant M/s. H.M. Constructions about the suit or the final decree proceedings and as such, the appellant herein was not in a position to get itself impleaded as a party to the proceedings or contest the same and therefore, it is necessary that both the preliminary decree and final decree be set-aside and matter be remitted back to the Trial Court for reconsideration of O.S.No.1792 of 2013 afresh in accordance with law. 12. Per contra, learned counsel for respondents 1 to 3 would deny and dispute the various submissions made on behalf of the appellant. However, he would not dispute the fact that the appellant was not a party to the preliminary decree proceedings and the final decree proceedings. Learned counsel for respondents 1 to 3 on instructions would further submit that, he has no objection for both the preliminary decree and the final decree to be set-aside and matter remitted back to the Trial Court for reconsideration afresh within a stipulated time frame - 10 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 for disposal of the suit only insofar as the appellant herein is concerned and without issuing a notice to defendants, who had already been placed ex-parte before the Trial Court. 13. In view of the aforesaid facts and circumstances and the joint submission made by both sides and in the light of the undisputed fact that the appellant herein, who claims to be a purchaser from defendant No.6-Sri. Abdul Salam, who had remained ex-parte both in the preliminary decree proceedings and final decree proceedings, by adopting the justice oriented approach and to avoid multiplicity of proceedings and to enable the appellant to put forth its defence before the Trial Court, I deem it just and appropriate to set-aside both preliminary decree and final decree and remit the matter back to the Trial Court for reconsideration of Original Suit No.1792 of 2013 afresh in accordance with law within a stipulated time frame, by imposing certain conditions. 14. As stated above, in view of the fact that the appellant was not a party both in both preliminary decree proceedings and final decree proceedings and it was not aware of the proceedings, I am of the considered opinion that, a valid and sufficient cause is made out by the appellant herein in approaching this Court and the delay of 1031 days in filing the R.F.A. No.811 of 2025 and 490 days in filing the R.F.A. No.813 of 2025 deserves to be condoned by leaving open all contentions to be urged before the Trial Court. So also, since the appellant was not a - 11 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 party to both preliminary decree proceedings and final decree proceedings, the application for grant of leave filed by the appellant in both the appeals also deserves to be allowed. 15. In the result, I pass the following: O R D E R a) Regular First Appeals are allowed; b) Applications IA.1/2025 filed by the appellant in both the appeals are hereby allowed; consequently delay of 1031 days in filing the R.F.A. No.811 of 2025 and 490 days in filing the R.F.A. No.813 of 2025 is condoned; c) Applications IA.2/2025 filed by the appellant in both the appeals are hereby allowed; consequently the appellant is granted leave to file and prosecute the appeals against the judgment and decree dated 25.02.2021 passed in the O.S. No.1792 of 2013 and order/final decree dated 23.08.2023 passed in F.D.P. No.42 of 2022 on the file of the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru. d) Judgment and decree dated 25.02.2021 passed in O.S. No.1792 of 2013 and order/final decree dated 23.08.2023 passed in F.D.P. No.42 of 2022 on the file of the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru are hereby set-aside; - 12 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 e) Matter is remitted back to the Trial Court for reconsideration of O.S. No.1792 of 2013 afresh in accordance with law; f) Both the appellant and respondents 1 to 3 are directed to appear before the Trial Court in O.S. No.1792 of 2013 on 21.04.2025 without awaiting further notice from the Trial Court; g) On appearing before the Trial Court on 21.04.2025, in O.S. No.1792 of 2013, the appellant shall file an application, seeking to implead itself as additional defendant to the suit; if such an application is filed, the Trial Court shall allow the application and direct the applicant to be impleaded as additional defendant to the suit; h) It is directed that the Trial Court need not issue a Court notice to the already existing defendants other than the appellant herein for the purpose of proceeding further in the matter, since they have already been placed ex-parte; i) The appellant herein shall file written statement before the Trial Court on or before 06.06.2025 and the Trial Court, immediately upon the appellant herein filing the written statement, shall frame appropriate issues and dispose of the suit afresh in accordance with law on or before 26.09.2025; - 13 - NC: 2025:KHC:13736 RFA NO.811 OF 2025 C/W RFA NO.813 OF 2025 j) All rival contentions and all aspects of the matter are kept open and no opinion is expressed on the merits/demerits of the case. SD/- (S.R.KRISHNA KUMAR) JUDGE ARK List No.: 1 Sl No.: 4