- 1 - HC-KAR NC: 2025:KHC:44373 CRP No. 66 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CIVIL REVISION PETITION NO. 66 OF 2020 BETWEEN: SRI K.P. GANGADHARA S/O SRI. PUTTEGOWDA AGED ABOUT 50 YEARS, AGRICULTURIST, R/O KARAKUCHI A CLOLONY, LAKKAVALLI HOBLI TARIKERE TALUK CHIKKAMAGALURU DISTRICT - 577 128. …PETITIONER (BY SRI. D.C. PARAMESWARAIAH, ADVOCATE) AND: SRI. SHANKARAPPA S/O LATE AYYAPPA AGED ABOUT 43 YEARS, AGRICULTURIST, R/O KARAKUCHI B COLONY, LAKKAVALLI HOBLI TARIKERE TALUK CHIKKAMAGALURU DISTRICT - 577 128. …RESPONDENT (BY SRI. H. KANTHARAJA, ADVOCATE) THIS CRP IS FILED UNDER SEC.115 OF CPC 1908 AGAINST THE JUDGMENT DATED 06.01.2020 PASSED IN MA NO 12/2018 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU ALLOWING THE APPEAL FILED UNDER ORDER XLIII RULE 1(d) OF CPC AND Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:44373 CRP No. 66 of 2020 SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.03.2014 PASSED IN O.S.42/13 PASSED BY THE DENIOR CIVIL JUDGE, TARIKERE. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL ORDER Heard Sri D.C.Parameshwaraiah, learned counsel for the revision petitioner. None appears for the respondent. The revision petitioner is the plaintiff in O.S.No.42/2013, wherein the suit was filed seeking relief of specific performance of the registered agreement to sell dated 15.12.2010. 2. The suit summons issued to the defendant was not claimed by the defendant and by order dated 14.02.2014, the learned Trial Judge held the service to the defendant as sufficient and proceeded with the suit exparte and the suit came to be decreed on 12.03.2014. 3. After the exparte decree came to be passed, the defendant filed a miscellaneous petition seeking setting aside of the exparte decree. - 3 - HC-KAR NC: 2025:KHC:44373 CRP No. 66 of 2020 4. The said miscellaneous petition on contest came to be dismissed and therefore, the defendant filed an appeal before the II Additional District and Sessions Judge, Chikkamagaluru, in M.A.No.12/2018. 5. The learned District Judge, after notifying the plaintiff, took into consideration the relevant aspects of the matter and allowed the miscellaneous appeal and set aside the exparte decree, inter alia, holding in paragraph Nos.11 to 13, which reads as under: 11. Perused the lower Court records and also perused the impugned order passed by the Trial Court in C.Misc. No.5/2015. For his non-representation or his non- appearance before Trial Court in O.S No.42/2013, the appellant has stated that he was charge sheeted in S.C. No.78/2011 on the file of Addl. Sessions Judge, Chikkamagaluru for the offences punishable under sections 302 and 201 R/w Section 34 of IPC, he was in judicial custody till 20.12.2012. Thereafter, he was acquitted of the charges. Due to mental agony, he shifted his residence to Bengaluru and worked as a security Guard for his livelihood without informing his wife who was residing at Karakuchi village. That he came to know about passing of exparte decree on 18.08.2015 through one M.G.Prakash of Karakuchi village, thereafter, he has filed petition for setting aside the exparte judgment and decree. According to him, he has no knowledge about the filing of the suit by respondent/plaintiff in O.S No.42/2013 and summons of the said suit was not duly served on him as he was not - 4 - HC-KAR NC: 2025:KHC:44373 CRP No. 66 of 2020 residing in Karakuchi village. In support of his case, the appellant has examined himself as PW.1 and also examined one T.G.Prakash as PW.2. He also marked as many as 59 documents as per Ex.P1 to Ex.P59. The Ex.P59 is working certificate furnished by the appellant to show that he was working as a security guard in Bengaluru. But the Trial Court has observed that the appellant has not examined the author of Ex.P59 to prove that he was working in Bengaluru in Shruthi Maintenance Services. But, PW.2 has specifically deposed that the appellant was working in Bengaluru. But the Trial Court has not assigned any reasons as to why the evidence of PW.2 is not believable and trustworthy. But the Trial Court has come to the conclusion that the appellant has not furnished any cogent and reliable evidence to show that he was residing in Bengaluru and finally hold that the summons were properly served on the appellant/defendant in O.S No.42/2013 and thereby dismissed his petition for setting aside exparte judgment and decree. 12. As per provisions of Order IX Rule 13 of C.P.C., it is true that in a case wherein decree is passed exparte against a defendant, he must show that the summons was not duly served upon him and he was prevented by sufficient cause from appearing before the Court when the suit was called on for hearing. But, at the same time, the Courts should not forget that when the rights of the parties are involved in respect of immovable property, it is well settled that when substantial justice and technicalities pitted against each other, only substantial justice should prevail. Further, when the suit is in respect of immovable property, the parties should not deprive their legitimate rights by way of technicality. Thus, it is for the parties to adjudicate the rights by adducing oral and documentary evidence on record to establish their independent rights in respect of immovable property. In the case on hand, it is the specific contention of appellant that the suit property - 5 - HC-KAR NC: 2025:KHC:44373 CRP No. 66 of 2020 involved in 0.5 No.42/2013 is an areca land measuring 2 acres and the value of the property even as on the date of agreement of sale was more than Rs.30 lakhs and the alleged agreement was security to loan of Rs.3 lakhs and there was absolutely no agreement between the appellant and respondent, entire transaction was of a loan transaction, the agreement in question was only a security arrangement. Such being the contention of the appellant/defendant, in my considered opinion the substantial rights of the parties should not be deprived on technicalities. The facts remains that the suit before the Trial Court is in respect of immovable property. If an opportunity is given to the defendant/appellant to contest the original suit, then no prejudice would be caused to the respondent/plaintiff as the material documents indicate that appellant remained exparte before the Trial Court. What would happen if the exparte judgment and decree passed in O.S No.42/2013 is set side? Obviously, the suit would be heard on merits. In other words, no any prejudice would be caused to respondent/plaintiff, if the suit is heard on merits by giving an opportunity to appellant/defendant. 13. Further, the counsel for the appellant relied upon a decision of Hon'ble Appex Court in Robin Thapa vs Rohit Dora reported in (2019) 7 SCC 355, wherein it is observed that: "7 Originally, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits." 6. Being aggrieved by the same, the plaintiff is before this Court in this revision on the following grounds: - 6 - HC-KAR NC: 2025:KHC:44373 CRP No. 66 of 2020 It is submitted that, the Appellate Court has failed to appreciate the fact that the Petitioner has already taken over the possession of the suit schedule properties as per the Judgment and Decree passed in O.S.No.42/2015 by filing Execution Petition in Ex. No.26/2014. It is submitted that, the Appellate Court has failed to appreciate the oral and documentary evidence placed before it. The Appellate Court has erred in holding that no prejudice could be caused to the Petitioner herein, if the suit is heard on merits giving an opportunity to the Respondent herein since the Respondent herein has all along watching the proceedings in the suit, the Execution proceedings. It is also pertinent here to mention that the wife of the Respondent had filed an Application in the Execution proceedings and that also came to be rejected. It is submitted that, the Appellate Court had erred in passing the impugned order and it has also gone out of its Jurisdiction in discussing the merits of the suit, which is not only permissible under law and is also prima facie perverse. On this ground alone, the impugned order has to be set aside and the Judgment and Decree passed in O.S.No.42/2013 has to be confirmed and the registration of sale deed as per the Judgment and Decree passed in O.S.No.42/2013 in Ex.No.26/2014 has to be confirmed. The Appellate Court had erred in holding that, the Respondent had proved that the suit summons has not been properly served on him and also that he was working in Bengaluru as a Security guard for his livelihood and also the evidence of PW2- Sri.M.G.Prakash has to be believed. The Senior Civil Judge & JMFC, Tarikere while dismissing the Civil. Misc. No.5/2015 has discussed the facts and has given the detailed reasoning for the dismissal of the said Civil Misc. and it has also discussed about the service of summons on the Respondent in the suit and also the contention of the Respondent that he - 7 - HC-KAR NC: 2025:KHC:44373 CRP No. 66 of 2020 is working as a Security guard in Bengaluru for his livelihood as per Exhibit.P.59, which was not proved and the evidence of PW2-Sri.M.G.Prakash was also not believable. Thus, the Appellate Court has wrongly held that the Respondent is working in Bengaluru. Hence, the impugned Judgment and Order is liable to be set aside. The Appellate Court has erred in not taking into consideration. the admitted fact that the Petitioner had filed a suit for Specific performance against the Respondent in O.S.No.42/2013, based on the registered Agreement of Sale. By the impugned Order, the Respondent is taking the undue advantage of the process of law and the Petitioner who has been successful in the suit and the execution proceedings has to undergone the entire exercise once again, for no fault on his side. Viewed from any angle, the impugned Judgment and Decree is unreasonable, capricious and as such liable to be set aside." 7. Sri D.C.Parameshwaraiah, learned counsel for the revision petitioner, reiterating the grounds urged in the revision petition, vehemently contended that the First Appellate Court grossly erred in setting aside the order passed in Civil.Mis.No.5/2015, resulting in a miscarriage of justice. 8. He would also point out that even earlier than the date of the defendant not claiming the notice on 14.02.2014, the summons issued to the defendant was duly served on his wife and by virtue of the amendment to the CPC, as found in Order - 8 - HC-KAR NC: 2025:KHC:44373 CRP No. 66 of 2020 5 of the CPC, if the service of summons is on any adult member instead of a male member, is a sufficient service. 9. Therefore, the contentions urged on behalf of the defendant that there was no proper service of summons had been rightly appreciated by the learned Judge in Civil.Mis.No.5/2015, which has not been properly taken note of by the learned Judge in the First Appellate Court in the impugned order and sought for admitting the revision petition for further consideration. 10. Learned counsel for the respondent is absent. Therefore, this Court perused the material on record meticulously in the light of the argument put forth on behalf of the revision petitioner. 11. Admittedly, the suit is one for specific enforcement of the agreement to sell. In other words, the rights of immovable property are being adjudicated in the suit. 12. In such suits, allowing the exparte decree to remain on record would work out harsh for the parties. It is expected that all suits must be disposed of on merits. Further, the - 9 - HC-KAR NC: 2025:KHC:44373 CRP No. 66 of 2020 learned Judge in the First Appellate Court has imposed a sum of Rs.10,000/- as the cost while allowing the miscellaneous appeal. 13. Taking note of the fact that summons was duly served on the wife of the defendant at the first instance, subsequently notice issued by registered post was not claimed by the defendant, and the learned Trial Judge placing the exparte is justified. 14. However, as pointed out supra, rights in respect of immovable property cannot be jeopardized on the basis of an exparte decree. 15. Therefore, in the considered opinion of this Court, enhancing the cost for another Rs.15,000/- (Rs.15,000+Rs.10,000=Rs.25,000) and directing the defendant to further participate in the suit and the suit being directed to be expedited, taking note of the fact that the suit is of the year 2013, ends of justice could be met. 16. Accordingly, following: - 10 - HC-KAR NC: 2025:KHC:44373 CRP No. 66 of 2020 ORDER i. The revision petition stands allowed in part. ii. While maintaining the impugned order of setting aside the exparte decree M.A.No.12/2018, cost imposed by the First Appellate Court is enhanced to Rs.25,000/-, inclusive of Rs.10,000/-. iii. Payment of cost is a condition precedent for the defendant to further participate in the matter. iv. The Trial Court shall expedite the suit as early as possible and dispose of the same not later than June 30, 2026. Sd/- (V SRISHANANDA) JUDGE HDK List No.: 1 Sl No.: 7