IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25 THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS BETWEEN: SRI. M.B. DEVRAJ, S/O. LATE SRI. M.S BASAVAIAH, AGED ABOUT 66 YEARS, SINCE DEAD REPRESENTED BY HIS LR’S 1. A. PADMAVATHI W/O LATE M.B. DEVARAJ, AGED ABOUT 67 YEARS, R/AT NO.9, 8TH TEMPLE ROAD, ITTAMADU, BSK 3 STAGE, BENGALURU 2. M.D. KANAKALAKSHMI D/O LATE M.B DEVARAJ, AGED ABOUT 40 YEARS, R/AT NO.1033, SRI DEVI KRUPA, PIPE LINE, 16TH MAIN, 1 HARI HARA ROAD, B.S.K., 1 SRINAGAR, BENGALURU 3. M.D.MALATHI D/O LATE M.B. DEVARAJ, AGED ABOUT 35 YEARS, R/AT NO.297, 1 ANJANEYA GUDI STREET, YADIYURU, JAYANAGAR, 6 BSK 2ND STAGE, BENGALURU AMENDMENT VIDE ORDER 25.10.2024. (BY SRI. ANAGHA.J. PRAKASH, ADVOCATE; SRI. SRINIVAS, ADVOCATE FOR LR’S OF APPELLANTS) - 1 - NC: 2025:KHC:12744 MFA No. 5551 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.5551 OF 2017 (CPC) SRI. M.B. DEVRAJ, S/O. LATE SRI. M.S BASAVAIAH, AGED ABOUT 66 YEARS, SINCE DEAD REPRESENTED BY HIS LR’S A. PADMAVATHI W/O LATE M.B. DEVARAJ, AGED ABOUT 67 YEARS, TH CROSS, LAKSHMIDEVI ROAD, ITTAMADU, BSK 3RD STAGE, BENGALURU – 560 085. M.D. KANAKALAKSHMI D/O LATE M.B DEVARAJ, AGED ABOUT 40 YEARS, R/AT NO.1033, SRI DEVI KRUPA, PIPE MAIN, 1ST A MAIN, HARI HARA ROAD, B.S.K., 1ST STAGE, SRINAGAR, BENGALURU - 560 050. D/O LATE M.B. DEVARAJ, AGED ABOUT R/AT NO.297, 1ST CROSS, ANJANEYA GUDI STREET, YADIYURU, JAYANAGAR, 6TH BLOCK, STAGE, BENGALURU – 560070. AMENDMENT VIDE ORDER 25.10.2024. …APPELLANTS (BY SRI. ANAGHA.J. PRAKASH, ADVOCATE; SRI. SRINIVAS, ADVOCATE FOR LR’S OF APPELLANTS) NC: 2025:KHC:12744 MFA No. 5551 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR FIRST APPEAL NO.5551 OF 2017 (CPC) …APPELLANTS Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA AND: 1. SRI.BETTAIAH S/O KALYANAYA, AGED ABOUT 62 YEARS, RESIDING AT NO 48, 5TH CROSS, GAJANAN JUICE CENTRE, BENGALURU – 560 050. 2. SMT. LALITHA W/O SIDDALINGAIAH, AGED ABOUT 50 YEARS RESIDING AT NO 36 I CROSS, SERVANT COLONY, BENGALURU – 560 019. 3. SRI HANUMANTHAPPA S/O GANGAIAH AGED ABOUT 61 YEARS RESIDING AT HOSAKEREALLI, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK. NOW R/AT NO 124, A K COLONY, B S K 3 1ST MAIN ROAD, GANGAMMA TEMPLE, HOSAKEREHALLI, UTTARAHALLI BUS STOP, NEAR J C BAKERY, (BY SRI. HADI FEBIN ADVOCATE FOR SRI. V.B. SHIVAKUMAR FOR R1 TO R3) THIS MFA HAS FILED U/O 43 RULE 1(d) OF CPC, AGAINST THE ORDER DT.08.06.2017 PASSED ON I.A.NO.1 MISC.NO.489/2011 ON THE FILE OF THE 24TH ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH DISMISSING I.A.NO.1 FILED U/S 5 OF LIMITATION ACT, AS THE RESULT PETITION IS DISMISSED. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT W - 2 - NC: 2025:KHC:12744 MFA No. 5551 of 2017 S/O KALYANAYA, AGED ABOUT 62 YEARS, RESIDING AT NO 48, CROSS, GAJANAN JUICE CENTRE, 560 050. W/O SIDDALINGAIAH, AGED ABOUT 50 YEARS RESIDING AT NO 366, I CROSS, SERVANT COLONY, 560 019. SRI HANUMANTHAPPA IAH AGED ABOUT 61 YEARS RESIDING AT HOSAKEREALLI, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK. NOW R/AT NO 124, A K COLONY, B S K 3RD STAGE, MAIN ROAD, GANGAMMA TEMPLE, HOSAKEREHALLI, UTTARAHALLI BUS STOP, NEAR J C BAKERY, BENGALURU – 560 086. …RESPONDENTS (BY SRI. HADI FEBIN ADVOCATE FOR SRI. V.B. SHIVAKUMAR FOR R1 TO R3) THIS MFA HAS FILED U/O 43 RULE 1(d) OF CPC, AGAINST THE ORDER DT.08.06.2017 PASSED ON I.A.NO.1 MISC.NO.489/2011 ON THE FILE OF THE 24TH ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH DISMISSING I.A.NO.1 FILED U/S 5 OF LIMITATION ACT, AS THE RESULT PETITION IS DISMISSED. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: NC: 2025:KHC:12744 MFA No. 5551 of 2017 …RESPONDENTS THIS MFA HAS FILED U/O 43 RULE 1(d) OF CPC, AGAINST THE ORDER DT.08.06.2017 PASSED ON I.A.NO.1 IN MISC.NO.489/2011 ON THE FILE OF THE 24TH ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH-6), DISMISSING I.A.NO.1 FILED U/S 5 OF LIMITATION ACT, AS THIS APPEAL, COMING ON FOR FINAL HEARING, THIS CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR The appeal is filed by the petitioner (who was defendant in O.S.No.642/2005) in Miscellaneous No.489/2011 aggrieved by the order dated 08.06.2017 passed on I.A.No.1 filed under Section 5 of Limitation Act thereby dismissing the said application as having b by limitation. 2. During the pendency of appeal the appellant/petitioner died, therefore his legal heirs were brought on record. The appellants’ father was defendant in O.S.No.642/2005. The respondents herein being plaintiffs have filed the suit injunction. It is contended that the summons has not been served to the defendants. 3. Learned counsel for the appellants submitted that initially the plaintiff had filed the suit as indigent person by filing an applicati - 3 - NC: 2025:KHC:12744 MFA No. 5551 of 2017 HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The appeal is filed by the petitioner (who was defendant in O.S.No.642/2005) in Miscellaneous No.489/2011 aggrieved by the order dated 08.06.2017 passed on I.A.No.1 filed under Section 5 of Limitation Act thereby dismissing the said application as having b During the pendency of appeal the appellant/petitioner died, therefore his legal heirs were brought on record. The appellants’ father was defendant in O.S.No.642/2005. The respondents herein being plaintiffs have filed the suit for declaration and permanent injunction. It is contended that the summons has not been served to the defendants. Learned counsel for the appellants submitted that initially the plaintiff had filed the suit as indigent person by filing an application under Order 33 Rule 1 of NC: 2025:KHC:12744 MFA No. 5551 of 2017 HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR The appeal is filed by the petitioner (who was defendant in O.S.No.642/2005) in Miscellaneous No.489/2011 aggrieved by the order dated 08.06.2017 passed on I.A.No.1 filed under Section 5 of Limitation Act thereby dismissing the said application as having barred During the pendency of appeal the appellant/petitioner died, therefore his legal heirs were brought on record. The appellants’ father was defendant in O.S.No.642/2005. The respondents herein being for declaration and permanent injunction. It is contended that the summons has not Learned counsel for the appellants submitted that initially the plaintiff had filed the suit as indigent on under Order 33 Rule 1 of CPC and on the said application notice was issued to the Deputy Commissioner to file a report. Said notice was ordered on 21.07.2006 and the matter was adjourned to 30.11.2006. On the said date i.e., on 30.11.2006 the Deputy Commissioner has prayed time for filing his reply and accordingly, one more notice on I.A.No.3 was issued to the Deputy Commissioner by adjourning the matter to 02.04.2007. 4. On 02.04.2007 it was noted in the order sheet that defendant Nos.1 and 2 are a 17.03.2007. On previous date i.e., on 30.11.2006 there is no order of issuing summons to the defendants, but on 02.04.2007 straight away it was observed by the trial court that summons were served on defendant Nos.1 and 2. Therefore, there is no order of issuance of summons to defendants and straight away it was ordered that summons to defendant Nos.1 and 2 were served. Hence, in these circumstances, upon perusing the order sheet produced along with the appeal it is borne out that - 4 - NC: 2025:KHC:12744 MFA No. 5551 of 2017 CPC and on the said application notice was issued to the Deputy Commissioner to file a report. Said notice was ordered on 21.07.2006 and the matter was adjourned to 30.11.2006. On the said date i.e., on 30.11.2006 the ommissioner has prayed time for filing his reply and accordingly, one more notice on I.A.No.3 was issued to the Deputy Commissioner by adjourning the matter to On 02.04.2007 it was noted in the order sheet that defendant Nos.1 and 2 are absent though served on 17.03.2007. On previous date i.e., on 30.11.2006 there is no order of issuing summons to the defendants, but on 02.04.2007 straight away it was observed by the trial court that summons were served on defendant Nos.1 and e, there is no order of issuance of summons to defendants and straight away it was ordered that summons to defendant Nos.1 and 2 were served. Hence, in these circumstances, upon perusing the order sheet produced along with the appeal it is borne out that NC: 2025:KHC:12744 MFA No. 5551 of 2017 CPC and on the said application notice was issued to the Deputy Commissioner to file a report. Said notice was ordered on 21.07.2006 and the matter was adjourned to 30.11.2006. On the said date i.e., on 30.11.2006 the ommissioner has prayed time for filing his reply and accordingly, one more notice on I.A.No.3 was issued to the Deputy Commissioner by adjourning the matter to On 02.04.2007 it was noted in the order sheet bsent though served on 17.03.2007. On previous date i.e., on 30.11.2006 there is no order of issuing summons to the defendants, but on 02.04.2007 straight away it was observed by the trial court that summons were served on defendant Nos.1 and e, there is no order of issuance of summons to defendants and straight away it was ordered that summons to defendant Nos.1 and 2 were served. Hence, in these circumstances, upon perusing the order sheet produced along with the appeal it is borne out that the defendants have not received summons. Therefore, resultantly suit was decreed exparte. 5. The defendants have filed Miscellaneous Petition under Order IX Rule 13 CPC, but trial court dismissed the said petition on the reason that it is barred by li The defendants knew the fact that such exparte decree was passed on 14.06.2011 and immediately within 30 days i.e., on 16.07.2011 miscellaneous petition was filed but the trial court has dismissed the said petition as barred by limitation. 6. Therefore, considering the above sequence of events, the defendants did not know the proceedings pending before the trial court and the trial court ought to have considered the miscellaneous petition filed under Order IX Rule 30 CPC in positive way negative way. Same is declaration being granted without making the defendants participate in the proceedings. Therefore, it is necessary - 5 - NC: 2025:KHC:12744 MFA No. 5551 of 2017 defendants have not received summons. Therefore, resultantly suit was decreed exparte. The defendants have filed Miscellaneous Petition under Order IX Rule 13 CPC, but trial court dismissed the said petition on the reason that it is barred by limitation. The defendants knew the fact that such exparte decree was passed on 14.06.2011 and immediately within 30 days i.e., on 16.07.2011 miscellaneous petition was filed but the trial court has dismissed the said petition as barred by limitation. Therefore, considering the above sequence of events, the defendants did not know the proceedings pending before the trial court and the trial court ought to have considered the miscellaneous petition filed under Order IX Rule 30 CPC in positive way, but considered in Same is virtually amounting to decree of declaration being granted without making the defendants participate in the proceedings. Therefore, it is necessary NC: 2025:KHC:12744 MFA No. 5551 of 2017 defendants have not received summons. Therefore, The defendants have filed Miscellaneous Petition under Order IX Rule 13 CPC, but trial court dismissed the mitation. The defendants knew the fact that such exparte decree was passed on 14.06.2011 and immediately within 30 days i.e., on 16.07.2011 miscellaneous petition was filed but the trial court has dismissed the said petition as Therefore, considering the above sequence of events, the defendants did not know the proceedings pending before the trial court and the trial court ought to have considered the miscellaneous petition filed under considered in virtually amounting to decree of declaration being granted without making the defendants participate in the proceedings. Therefore, it is necessary to make the appellants herein who are legal heirs of defendants to par the order dated 08.06.2017 passed by the XXIV Addl. City Civil & Sessions Judge, Bangalore City, in Miscellaneous No.489/2011, is hereby set aside and accordingly, exparte judgment and decree passed in O.S.No.642 set aside. Consequently, suit in O.S.No.642/2005 is also restored on its board. 7. In view of the above, I proceed to pass the following: (i) The appeal is (ii) The order dated 08.06.2017 passed on I.A.No.1 filed under Section 5 Act, by the Court of XXIV Addl. City Civil & Sessions Judge, Bangalore City (CCH Miscellaneous No aside and - 6 - NC: 2025:KHC:12744 MFA No. 5551 of 2017 to make the appellants herein who are legal heirs of defendants to participate in the suit proceedings. As such, the order dated 08.06.2017 passed by the XXIV Addl. City Civil & Sessions Judge, Bangalore City, in Miscellaneous No.489/2011, is hereby set aside and accordingly, exparte judgment and decree passed in O.S.No.642/2005 is also set aside. Consequently, suit in O.S.No.642/2005 is also restored on its board. In view of the above, I proceed to pass the ORDER The appeal is allowed. order dated 08.06.2017 passed on I.A.No.1 filed under Section 5 of Limitation by the Court of XXIV Addl. City Civil & Sessions Judge, Bangalore City (CCH-6), in Miscellaneous No.489/2011, is hereby set and O.S.No.642/2005 on the file of NC: 2025:KHC:12744 MFA No. 5551 of 2017 to make the appellants herein who are legal heirs of ticipate in the suit proceedings. As such, the order dated 08.06.2017 passed by the XXIV Addl. City Civil & Sessions Judge, Bangalore City, in Miscellaneous No.489/2011, is hereby set aside and accordingly, exparte /2005 is also set aside. Consequently, suit in O.S.No.642/2005 is also In view of the above, I proceed to pass the order dated 08.06.2017 passed on of Limitation by the Court of XXIV Addl. City Civil & 6), in .489/2011, is hereby set of XXIV Additional City Civil and Sessions Judge, Bangalore City (iii) The trial court is directed to consider the suit afresh in accordance with law and shall make every endeavour to dispose of the suit as expeditiously as possible within a period of 1½ year from the date of receipt of copy of this order. (iv) Both parties shall appear before the trial court on 15.04.2025 notice from the trial court. DR List No.: 1 Sl No.: 58 - 7 - NC: 2025:KHC:12744 MFA No. 5551 of 2017 XXIV Additional City Civil and Sessions Judge, Bangalore City (CCH-6), is hereby restored. The trial court is directed to consider the suit afresh in accordance with law and shall make every endeavour to dispose of the suit as expeditiously as possible within a period of 1½ year from the date of receipt of copy of this order. Both parties shall appear before the trial court on 15.04.2025 without expecting notice from the trial court. SD/- (HANCHATE SANJEEVKUMAR) JUDGE NC: 2025:KHC:12744 MFA No. 5551 of 2017 XXIV Additional City Civil and Sessions Judge, restored. The trial court is directed to consider the suit afresh in accordance with law and shall make every endeavour to dispose of the suit as expeditiously as possible within a period of 1½ year from the date of receipt of copy of Both parties shall appear before the trial without expecting (HANCHATE SANJEEVKUMAR)