- 1 - HC-KAR NC: 2025:KHC:21171 WP No. 14356 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 14356 OF 2020 (GM-CPC) BETWEEN: SRI. PETER @ PETER RAJ S/O J. YAGAPPA AGED ABOUT 52 YEARS R/O MARIYANAPALYA K.R. PURAM HOBLI, BANGALORE EAST TALUK. …PETITIONER (BY SRI. SHIVAKUMARAPPA T.C., FOR SRI. SRIDHARA T., ADVOCATES) AND: 1. SMT. ANTHONY MARY C D/O J. YAGAPPA AGED ABOUT 56 YEARS 2. SMT. SUSHEELAMMA D/O J. YAGAPPA AGED ABOUT 53 YEARS 3. SMT. SAGAYA MARY D/O J. YAGAPPA AGED ABOUT 53 YEARS 4. SMT. YAGA MARY D/O J. YAGAPPA AGED ABOUT 47 YEARS 5. SMT. ANTHONY MARY D/O J. YAGAPPA AGED ABOUT 45 YEARS Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:21171 WP No. 14356 of 2020 6. SMT. SHANTHA MARY D/O J. YAGAPPA AGED ABOUT 42 YEARS RESPONDENT NO.1 TO 6 ARE RESIDING AT MARIYANAPALYA, K.R. PURAM HOBLI, BANGALORE EAST TALUK. 7. SRI. J. YAGAPPA S/O LATE JACOB AGED ABOUT 53 YEARS 8. SRI. FRANCIS JAVIER S/O YAGAPPA AGED ABOUT 86 YEARS 9. SMT. THERESAMMA D/O JACOB AGED ABOUT 75 YEARS RESPONDENT NO.7 TO 9 ARE RESIDING AT MARIYANAPALYA K.R. PURAM HOBLI, BANGALORE EAST TALUK. 10. SRI. BIMAL N DESAI S/O N.H. DESAI AGED ABOUT 55 YEARS R/AT NO.20 (OLD NO.4) POORNAPRASAD EXTENSION, BANGALORE-560001. 11. SMT. JAYAMMA W/O LATE M. LAKSHMANA AGED ABOUT 71 YEARS RESIDING AT NO.8/8, 2ND MAIN ROAD, ATTIGUPPE VIJAYANAGARA LAYOUT, BANGALORE-40. …RESPONDENTS (BY SRI. LOKESH K., ADVOCATE FOR RESPONDENT NOS.1 TO 6; - 3 - HC-KAR NC: 2025:KHC:21171 WP No. 14356 of 2020 SRI. KRISHNA S.R., ADVOCATE FOR RESPONDENT NO.10; NOTICE SERVED ON RESPONDENT NO.11; VIDE ORDER DATED 19.06.2025, NOTICE TO RESPONDENT NOS.7 TO 9 IS DISPENSED WITH) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER PASSED DATED 05.02.2020 PASSED BY THE XII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN O.S. NO.7661/2014 ON IA NO.12 FILED BY THE PETITIONER, THE APPLICATION IA NO.12 VIDE ANNEXURE-D. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking the following reliefs: "a) Issue writ of certiorari or any other writ or order or direction, in the nature of writ, quashing order passed dated 05/02/2020 passed by the XII Additional City Civil and Sessions Judge, Bengaluru in O.S.No.7661/2014 on I.A.No.12 filed by the petitioner, the application I.A.No.12 produced as Annexure - D to the writ petition. b) Cost and such other reliefs deems fit to grant under the circumstances of the case in the interest of justice and equity." - 4 - HC-KAR NC: 2025:KHC:21171 WP No. 14356 of 2020 2. Heard Sri. Shivkumarappa T.C. learned counsel appearing on behalf of Sri. Shridhar T, learned counsel for the petitioner. 3. The learned counsel for the petitioner submits that the petitioner filed an application in I.A.No.12 under Order IX Rule 7 read with Section 151 of Civil Procedure Code in suit filed in O.S.No.7661/2014 by the respondent No.1 herein to recall the ex-parte order dated 26.06.2015 wherein the Trial Court placed the petitioner ex-parte. However, the Trial Court without appreciating the averments made in the affidavit accompanying I.A.No.12, rejected the said application solely on the ground that there is a delay of 06 years in filing the application, as the suit was of the year 2014. He submitted that suit summons were not served on him and later he came to know that he had arrayed in the suit as a party. Hence, he filed an application. He submitted that it is a substantive right of the party to defend the suit and the same cannot be deprived. Hence, he seeks an opportunity to defend the suit. He submits that he would not drag further proceedings and seeks to allow the petition. - 5 - HC-KAR NC: 2025:KHC:21171 WP No. 14356 of 2020 4. Per contra, Sri. Lokesh K, learned counsel appearing for the respondent Nos.1 to 6 vehemently opposed the writ petition and submits that the suit summons were duly served on the petitioner and he was placed ex-parte on 26.06.2015. However, belatedly application came to be filed on 05.02.2020 without assigning any reason for the inordinate delay. It is submitted that the petitioner is attempting to drag on the proceedings and as the suit is of the year 2014, hence no indulgence can be shown to such a litigant by exercising discretionary power. Hence, he seeks to dismiss the petition. 5. I have considered submissions of learned counsel for the petitioner and learned counsel for the respondent and perused the material on record. 6. The respondent Nos. 1 to 6 filed the suit for partition and separate possession and the suit summons admittedly served on the petitioner. However, he did not appear by engaging the counsel. Later on 05.02.2020 filed an application to recall the order dated 26.06.2015 wherein he was placed ex-parte by the Trial Court. The Trial Court taking into consideration, the delay of more than 05 years in filing the - 6 - HC-KAR NC: 2025:KHC:21171 WP No. 14356 of 2020 application, rejected the same. I am of the considered view that an opportunity is required to be granted to the petitioner who is defendant No.3 in O.S.No.7661/2014, as a substantive right of the party is involved in the suit and is required to be defend effectively. His right to prosecute the suit cannot be curtailed merely on the ground that there is some lapse on the part of the petitioner in appearing before the Trial Court. However this Court also could not ignore the fact that the application was filed belatedly and now the matter is posted for cross-examination of DW.1. It is also noticed that this Court vide order dated 09.12.2020 stayed the further proceedings in the suit. Hence, taking the said aspect into consideration, I am of the considered view that writ petition is deserves to be allowed on terms. 7. For the aforementioned reasons, I proceed to pass the following: ORDER (i) The Writ petition is allowed. - 7 - HC-KAR NC: 2025:KHC:21171 WP No. 14356 of 2020 (ii) The impugned order dated 05.02.2020 passed on I.A.No.12 in so far as the petitioner is concerned, is set aside. Consequently, I.A.No.12 is allowed. (iii) The petitioner is permitted to participate in the proceedings. He shall file the written statement before the next date of hearing i.e., on 14.08.2025. (iii) It is made clear that no further time would be granted to the petitioner to file the written statement. The aforesaid order is passed subject to the condition that the petitioner shall pay a cost of Rs.10,000/- to the plaintiff. (iv) It is made clear that the petitioner shall not seek any further adjournment and cooperate for early disposal of suit, as the suit is of the year 2014. Sd/- (VIJAYKUMAR A. PATIL) JUDGE HJ List No.: 1 Sl No.: 30