- 1 - NC: 2025:KHC-D:260 MFA No. 101524 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.101524 OF 2022 (CPC) BETWEEN: JIYAUDDINKHAN S/O. GOUSEKHAN JAHAGIRDAR, AGE. 69 YEARS, OCC. RETIRED GOVERNMENT EMPLOYEE, R/O. ASHRAFI MANZIL, AZAD NAGAR, MAIN ROAD, DHARWAD-580001. …APPELLANT (BY SRI K.L. PATIL, ADVOCATE) AND: 1. ASAD ALIKHAN S/O. MUSTAQ ALIKHAN KITTUR, SINCE DECEASED BY HIS LRS RUBEENA W/O. ASAD ALIKHAN KITTUR, AGE. 41 YEARS, OCC. HOUSEHOLD WORK, R/O. AZAD COLONY, NAGASHETTIKOPPA, KESHWAPUR, HUBBALLI-580023, DIST. DHARWAD-580001. 2. NUMMER S/O. ASAD ALIKHAN KITTUR, AGE. 13 YEARS, OCC. STUDENT, R/O. AZAD COLONY, NAGASHETTIKOPPA, KESHWAPUR, HUBBALLI-580023. 3. ARHAN S/O. ASAD ALIKHAN KITTUR, AGE. 11 YEARS, OCC. STUDENT, R/O. AZAD COLONY, NAGASHETTIKOPPA, KESHWAPUR, HUBBALLI, DIST. DHARWAD-580023. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:260 MFA No. 101524 of 2022 (RESPONDENT NO.2 AND 3 ARE MINORS THEY ARE REPRESENTED BY THEIR NATURAL MOTHER RESPONDENT NO.1) 4. JAFAR ALIKHAN @ JAFAR S/O. MUSHTAQ ALIKHAN KITTUR, AGE. 46 YEARS, OCC. BUSINESS, R/O. AZAD COLONY, NAGASHETTIKOPPA, KESHWAPUR, HUBBALLI-580023, DIST. DHARWAD-580023. 5. SALIMA W/O. MUSHTAQ ALIKHAN KITTUR, AGE. 61 YEARS, OCC. HOUSEHOLD WORK, R/O. AZAD COLONY, NAGASHETTIKOPPA, KESHWAPUR, HUBBALLI-580023, DIST. DHARWAD. …RESPONDENTS (BY SRI NEEL P.PATIL, HIRENKUMAR PATEL AND ZANZA S.JOSHI, ADVOCATES FOR R1; (R2 AND R3 ARE MINOR’S REPTD. BY R1); SRI SUBHASH J.BADDI, ADVOCATE FOR R4; SRI GOURI SHANKAR MOT, ADVOCATE FOR R5) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(D) OF THE CODE OF CIVIL PROCEDURE, PRAYING TO, SET ASIDE THE ORDER DATED 29.01.2022 PASSED IN MISC.NO.08/2019 BY THE 3RD ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD IN THE INTEREST OF JUSTICE AND EQUITY AND ETC., THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:260 MFA No. 101524 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Though this appeal is listed for admission, with consent of learned counsel for the parties, it is taken up for final disposal. 2. This appeal is filed by the appellant/plaintiff in O.S No.337/2016 by challenging the order passed in Misc.No.08/2019, dated 29.01.2022, by the Court of III Additional Senior Civil Judge and CJM, Dharwad, thereby setting aside the judgment and decree passed in O.S No.337/2016, dated 20.07.2018, by the Court of III Additional Senior Civil Judge and CJM, Dharwad. 3. For the purpose of convenience, ranking of the parties is referred to as per their status before the trial Court. 4. The brief facts of the case are that the petitioner filed the suit for recovery of amount of Rs.24,50,000/- from the defendants. The defendants appeared through advocate and filed written statement. During the course of trial, advocate for the defendants retired from the case by issuing notice that, the - 4 - NC: 2025:KHC-D:260 MFA No. 101524 of 2022 defendants are not providing information and document materials. In spite of service of said notices issued by their earlier advocate, the defendants have not taken any steps to engage any advocate to contest their suit. Accordingly, the defendants have failed to cross-examine the plaintiff and to lead their evidence. The Trial Court has inevitably decreed the suit in part after considering evidence on record. Later on, the defendants filed an application under Order IX Rule 13 R/w Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) to set aside the exparte judgment and decree passed in O.S No.337/2016. The Trial Court has allowed the said application filed under Order IX Rule 13 of the CPC with cost, restored the suit on its board and directed the parties to complete the cross-examination of the plaintiff and lead defence evidence by giving time of two months. 5. Learned counsel for the appellant submitted that after service of summons in O.S No.337/2016, the defendants engaged an advocate on their behalf and filed written statement. But, just because they failed to cross-examine the plaintiff, and failed to cross examine does not amount to exparte judgment and decree. Because the defendants knew - 5 - NC: 2025:KHC-D:260 MFA No. 101524 of 2022 very well about the suit proceedings, but have not engaged an advocate after attending the proceedings before the Trial Court. Therefore, the defendants knew the suit proceedings, hence, it does not amount to an exparte judgment and decree. Therefore, this is not correctly considered in the application and restoring the suit is also not correct. Hence, prays this Court to allow the appeal. 6. The respondents herein justified the impugned order passed by the Trial Court and pray this Court to dismiss the appeal. 7. Though the defendants have filed their written statement, but did not contest the suit. After filing written statement, advocate of the defendants filed a retirement memo and even after the advocate issued a notice of retirement, the defendants have failed to engage a counsel and to contest the case of the plaintiff. Hence, the suit was precipitated in the absence of defendants. Though this order cannot be considered as ex-parte, but the Trial Court in Misc.No8/2019 filed under Order IX Rule 13 of the CPC, exercised discretion to grant one more opportunity to the defendants to contest the suit. - 6 - NC: 2025:KHC-D:260 MFA No. 101524 of 2022 Therefore, the judgment and decree was recalled and permitted the defendants to cross-examine the plaintiff and adduce evidence. 8. This Court, having considered the above aspect cannot be found fault with the decision of the Trial Court while entertaining the application filed under Order IX Rule 13 of CPC. Therefore, setting aside the judgment and decree passed by the Trial Court and restoring the suit for cross examining the plaintiff and to adduce full evidence of the defendants need not be interfered with. Therefore, the appeal is liable to be dismissed. Accordingly the appeal is dismissed confirming the order dated 29.01.2022 in Misc.No.08/2019. 9. It is submitted by the respondents/defendants that they have paid cost to the plaintiff as ordered in Misc.No.8/2019. Submission is recorded. 10. Both the parties are directed to appear before the trial Court on 27.01.2025 without expecting any notice from the Court. - 7 - NC: 2025:KHC-D:260 MFA No. 101524 of 2022 11. The Trial Court is directed to conclude the trial and pass the judgment and decree within a period of three months from 27.01.2025 as per law. 12. The parties shall appear and co-operate with the Trial Court for earlier disposal of the suit within the time frame as mentioned above. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP List No.: 2 Sl No.: 34