- 1 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO. 107 OF 2023 (RO) BETWEEN: SMT T H PADMA W/O SOMASHEKAR, AGED ABOUT 52 YEARS, R/AT BEHIND SHARADA SANGEETHA NILAYA, NORTHERN EXTENTIION, HASSAN TALUK, HASSAN 573201 …APPELLANT (BY SRI. SATHISHA D.J., ADVOCATE) AND: 1. SMT CHANNAMMA DEAD BY LRS SMT PUTTATHAYAMA T H W/O MUDDEGOWDA, AGED ABOUT 70 YEARS, R/AT TEJUR VILLAGE, KASABA HOBLI, HASSAN TALUK 573201 2. SMT MAHALAKSHMI W/O KRISHNEGOWDA, AGED ABOUT 66 YEARS, R/AT PADAMANAHALLY VILLAGE, KATTAYA HOBLI, HASSAN TALUK 573201 Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 3. SMT YASHODA W/O RAMGEGOWDA, AGED ABOUT 62 YEARS, R/AT NEAR SCHOOL, GAVENAHALLY, HASSAN 573201 4. SRI KRISHNAKUMAR T H S/O HANUMEGOWDA, AGED ABOUT 57 YEARS R/AT OPP BASAVESHWARA KALYANA MANTAP BESIDE JAYASHEELA CLINIC, HOSALINE ROAD, HASSAN 573201 5. SMT MOHANAKUMARI T H W/O RAMEGOWDA AGED ABOUT 47 YEARS, R/AT KARLE KOPPALU, KATTAYA HOBLI, HASSAN TALUK 573201 6. SRI THIMMEGOWDA S/O HANUMEGOWDA, AGED ABOUT 44 YEARS, R/AT OPP BASAVESHWARA KALYANA MANTAP, BESIDE JAYASHEELA CLINIC, HOSALINE ROAD, HASSAN 573201 7. SRI MANJEGOWDA S/O VENKATEGOWDA AGED ABOUT 57 YEARS, - 3 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 8. SRI RANGASWAMY S/O VENKATEGOWDA AGED ABOUT 51 YEARS, 9. SRI KUMAR S/O VENKATEGOWDA AGED ABOUT 48 YEARS, 10. SMT JAYANTHI W/O MANJEGOWDA AGED ABOUT 48 YEARS, RESPONDENTS NO.7 TO 4 ARE R/AT TEJUR VILLAGE, KASABA HOBLI, HASSAN TALUK 573201 …RESPONDENTS (RESPONDENTS NO.1 TO 4, 6 TO 10 ARE SERVED AND UNREPRESENTED VIDE ORDER DATED 28.08.2025, SERVICE OF NOTICE TO R5 IS HELD SUFFICIENT) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) R/W SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 9.08.2023 PASSED IN RA NO.53/2020 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE, HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 29.10.2018 PASSED IN OS NO.191/2016 ON THE FILE OF V ADDITIONAL CIVIL JUDGE AND JMFC, HASSAN AND THE MATTER IS REMANDED TO TRIAL COURT FOR FRESH DISPOSAL UNDER ORDER 41 RULE 23A OF CPC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri. Sathisha D.J., learned counsel for the appellant. Respondents are served and unrepresented. 2. Plaintiff is the appellant in this Miscellaneous Second Appeal challenging the Order of remand passed by the First Appellate Court in R.A.No.53/2020 by judgement dated 09.08.2023 whereby the decree passed in O.S. No.191/2006 decreeing the suit of the plaintiff came to be set-aside and matter is remitted to the Trial Court for disposal in accordance with law. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under : 3.1 A suit came to be filed in O.S. No.191/2006 for partition and separate possession in respect of following immovable properties (hereinafter referred to as 'suit properties' for short): - 5 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 SCHEDULE - 1 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama, Sy.No.40/5 measuring 18 A 8 G of land bounded on : East - Land of Krishnakumar West - Land of Hanumegowda North - Land of Hanumegowda South - Land of Lakshmegowda SCHEDULE - 2 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama, Sy.No.43 measuring 3 A bounded on : East - Land of Krishnakumar West - Shankabonder North - Land of Kumara South - Shanka Border SCHEDULE - 3 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama, Sy.No.147/2 extent 5 guntas of land bounded on: East - Land of Krishnakumar West - Land of Umesha North - Land of Venkateshagowda South - Govt Road SCHEDULE - 4 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama, Sy.No.43, Khata No.112 extent 3A bounded on : East - Land of Rangegowda West - Land of Thimmegowda North - Land of Kumara South - House of Abdul Mohammed & Shanka Border - 6 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 SCHEDULE - 5 Hassan City, Hosaline Road, Property No.370, New Khata No.171, old Khata No.147, extent 50 x 30 house property and vacant land bounded on : East - Conservancy West - Road North - Property of Krishna Kumar South - Nursing Home SCHEDULE - 6 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama bearing Sy.No.40/5 extent 1 acre bounded on : East - Hanumegowda West - Javaregowda North - Manujegowda South - Hanumegowda SCHEDULE - 7 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama bearing Sy.No.40/5 extent 1 acre bounded on : East - Road West - Hanumegowda North - Kumara South - Hanumegowda - 7 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 SCHEDULE - 8 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama bearing Sy.No.40/5 extent 1 acre bounded on : East - Road West - Hanumegowda North - Manujegowda South - Rangegowda SCHEDULE - 9 Hassan Taluk, Kasaba Hobli, Uyagondanahally Grama bearing Sy.No.40/5 extent 1 acre bounded on : East - Road West - Hanumegowda North - Kumara South - Road. 3.2 In the suit, it is contended that plaintiff and defendants No.2 to 7 sons and daughters of Late Hanumanthe Gowda and they constructed joint family. Defendants No.8 to 11 are the purchasers of suit schedule item numbers 6 to 9. When there was a demand by the plaintiff to grant the sale, the same was denied by the defendants and therefore, suit came to be filed. - 8 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 4. Pursuant to suit summons, defendants No.2 to 5, 7, 8 and 11 appeared before the Trial Court but failed to file written statement. 5. Defendants No.1, 6, 9 and 10 did not even appear before the Court and therefore before Trial Court they were placed exparte. 6. As such, the Trial Court recorded the evidence of the plaintiff formally and after raising necessary points, decreed the suit of the plaintiff. 7. Being aggrieved by the same, defendants No.2 to 7 filed an appeal before the First Appellate Court in R.A.No.53/2020. 8. Learned Judge in the First Appellate Court after securing the records noted that, fair opportunity was not granted to file the written statement to contesting defendants, therefore, allowed the appeal and remitted to the Trial Court to permit the defendants to file written - 9 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 statement on payment of cost Rs.5000/- and contest the suit afresh in accordance with law. 9. Said Order is under challenge in this appeal by the plaintiff. 10. Sri. Sathisha D.J., learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that the First Appellate Court condoning the huge delay allowed the appeal of the defendants resulting in miscarriage of justice and sought for allowing the present appeal. 11. He would also contend that defendants No.2 to 7 did appear before the Trial Court and failed to file written statement. Therefore, judgement passed by the Trial Court cannot be considered as ex-parte judgement and therefore the reasoning assigned by the First Appellate Court for remitting the matter to the Trial Court is unacceptable and sought for allowing the appeal. - 10 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 12. In the light of the arguments put-forth on behalf of the appellant/plaintiff, this Court perused the material on record meticulously. 13. On such perusal of the material on record, admittedly defendants No.2 to 7 did not choose to file written statement even though they had engaged the service of a counsel and appeared before the Trial Court. 14. It is settled principles of law and requires no emphasis that mere appearance before the Trial Court and not participating the trial by filing written statement and judgement passed therein would par take the nature of an exparte decree. 15. Therefore, the First Appellate Court holding that the suit came to be decreed uncontested cannot be faulted with. 16. Having said so, the learned Judge in the First Appellate Court has noted that grave injustice has been - 11 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 caused by defendants in not contesting the suit especially when the suit is one for partition and therefore remitted the matter to the First Appellate Court on the condition that the defendants No.2 to 7 shall pay cost of Rs.5000/- and contest the suit in accordance with. 17. Therefore, the order of the First Appellate Court being the discretionary in nature, cannot be faulted with or brushed aside by this Court by exercising the power vested in this Court under Order XLIII of the Code of Civil Procedure. 18. Hence, following order; ORDER (i) Appeal is meritless and hereby dismissed. (ii) However taking note of the fact that the suit is of the year 2016 learned Judge shall expedite the matter and dispose off the same as early as possible. - 12 - HC-KAR NC: 2025:KHC:36426 MSA No. 107 of 2023 (iii) Plaintiff shall appear before the Court on the next date of hearing and place the copy of this order and request the Court to dispose of the suit as early as possible. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 33