- 1 - NC: 2025:KHC-D:6075 MFA No. 105960 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 105960 OF 2024 (CPC) BETWEEN: 1. GIRISH S/O. REVANAGOUDA BUDDANAGOUDAR, AGE 44 YEARS, OCC: AGRICULTURE & BUSINESS, R/O. 6TH CROSS, SHRIRAM NAGAR, NEAR JAIN PUBLIC SCHOOL, TQ. RANEBENNUR, 581115, DIST. HAVERI. 2. SMT. SUNANDA W/O. GIRISHA BUDDANAGOUDAR, AGE 35 YEARS, OCC: HOUSEWIFE, R/O. 6TH CROSS, SHRIRAM NAGAR, NEAR JAIN PUBLIC SCHOOL, TQ. RANEBENNUR, 581115, DIST HAVERI. …APPELLANTS (BY SRI. PRUTHVIRAJ P. HITTALAMANI, ADVOCATE) AND: SRIDHAR S/O. KRISHNAMURTHY VAISHYAR, AGE 52 YEARS, OCC: AGRICULTURE & BUSINESS, R/O. CHALAGERI, NOW AT: MRUTYUNJAYA NAGAR, 1ST MAIN, TQ. RANBENNUR, 581115, DIST. HAVERI. …RESPONDENT (BY SRI. DINESH M. KULKARNI, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/O.43 RULE 1(R) OF CPC, 1908, PRAYING TO SET ASIDE THE ORDER DATED 16.11.2024 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC RANEBENNUR IN CIVIL MISC NO.16/2021 IN DISMISSING THE PETITION SEEKING TO SET ASIDE THE EX PARTE JUDGMENT AND DECREE IN OS NO.115/2019 AND ALLOW THE PETITION FILED BY THE APPELLANTS UNDER ORDER 9 RULE 13 CPC IN CIVIL MISC PETITION NO.16/2021 AND SET ASIDE THE EX-PARTE JUDGMENT AND DECREE IN O.S.NO.115/2019 DATED 10.06.2020 BY ALLOW THE APPELLANTS TO CONTEST THE SUIT ON MERITS, IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:6075 MFA No. 105960 of 2024 THIS APPEAL, COMING ON FOR HEARING ON IA, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. Heard the learned advocate for both the sides. 2. This appeal is filed by the petitioners in Civil Misc.No.16/2021 dated 16.11.2024 on the file of the Addl.Senior Civil Judge and JMFC, Ranebennur (for short, ‘the Trial Court’). 3. Parties are referred to as per their rankings before the trial Court. 4. Brief facts of case are that the respondent herein filed O.S.No.115/2019 for the relief of specific performance of contract. The petitioners/appellants were defendant Nos.1 and 2 in O.S.No.115/2019. In spite of service of notice they did not appear before the trial Court and hence they were placed exparte. The Trial Court proceeded with the matter and decreed the suit by decree and judgment dated 10.06.2020. - 3 - NC: 2025:KHC-D:6075 MFA No. 105960 of 2024 5. Appellants herein filed application under Order IX Rule 13 of CPC before the I Addl.Senior Civil Judge, Ranebennur in Civil Misc.No.16/2021. The said application was contested by the respondent herein. 6. The trial Court recorded the evidence. The appellants examined two witnesses as PWs1 and 2 and marked six documents as per Exs.P1 to P6. After hearing both the parties and considering the materials available on record, the trial Court rejected the application filed under Order IX Rule 13 of CPC. The same is challenged in the present appeal. 7. Learned counsel for the appellants submits that the appellants were unable to appear before the Court in O.S.No.115/2019. The said suit was decreed and thereafter the respondent herein filed execution case in EP No.121/2020. The appellants received the cause notice of the execution case and thereafter they came to know the decree drawn in O.S.No.115/2019. The said decree was drawn during Covid period. They were unable to prosecute - 4 - NC: 2025:KHC-D:6075 MFA No. 105960 of 2024 the suit and not appeared before the Court in O.S.No.115/2019. The absence of petitioners was not deliberate. If opportunity is given to them, they would appear before the Court and contest the matter. With these reasons prayed to set aside the order passed by the trial Court. 8. Learned counsel for the respondent contends that appellant No.2 stated the reasons for their absence before the trial Court in O.S.No.115/2019. During the evidence, the trial Court found that both grounds are not tenable and not proved. Therefore, the trial Court rightly rejected the application and there are no grounds to interfere in the said order and hence prayed to dismiss the appeal. 9. The suit was for specific performance of contract. Undisputedly defendant Nos.1 and 2 did not appear before the trial Court and effectively prosecute the case. They remained exparte. Copy of the petition is produced before this Court. They have stated several - 5 - NC: 2025:KHC-D:6075 MFA No. 105960 of 2024 reasons which prevented them to appear before the Court in O.S.No.115/2019. Right over an immovable property is involved in this case. The contention of the appellants is that the said property is the only property for their livelihood and they have also contended several facts on merits of case in O.S.No.115/2019. They cannot be considered in the present appeal. 10. Looking to the facts and circumstances of the case, if an opportunity is given to the appellants they can contest the matter and the trial Court after hearing both the side can pass the judgment effectively. Principle of natural justice is right of each litigant. There may not be any malafide intention of the appellants for non- appearance before the trial Court. They would not get any benefit by remaining exparte on the contrary they have been suffering all the while after filing execution because of non-appearance before the trial Court. Therefore looking to the contention of the parties and to meet ends of justice it is a fit case to permit them to contest the - 6 - NC: 2025:KHC-D:6075 MFA No. 105960 of 2024 matter in O.S.No.115/2019, by setting aside the judgment and decree passed in the said case. 11. The contention of the learned counsel for the respondent is that they had been fighting the litigation from last 5 years before the trial Court, thereafter before the same Court in Civil Misc.No.116/2021 and also before this Court. It is true that in view of the absence of appellants herein before the trial Court, the litigation has been dragged down for last 5 years. It could be compensated by awarding heavy compensation. Only on that count right of the petitioners cannot be denied. 12. Considering the contention of the parties, this Court proceed to pass the following : ORDER i. Appeal is allowed with cost of Rs.50,000/- payable to the plaintiff. Payment of cost is condition precedent. The appellant shall deposit Rs.50,000/- before the trial Court within two weeks. - 7 - NC: 2025:KHC-D:6075 MFA No. 105960 of 2024 ii. The judgment and decree passed in Civil Misc.No.16/2021 dated 15.11.2024 on the file of the Addl.Senior Civil Judge and JMFC, Ranebennur is set aside. O.S.No.115/2019 is restored to its file. iii. Both the parties shall appear before the trial Court on 04.06.2025 without expecting any notice from the trial Court. iv. Send copy of this judgment to the trial Court. v. The trial Court shall give an opportunity to the appellants herein (defendant Nos.1 and 2) to file written statement within one month from 04.06.2025 and thereafter give an opportunity to both the parties to lead evidence and dispose of the suit in accordance with the law. Sd/- (UMESH M ADIGA) JUDGE KGK /CT-AN List No.: 1 Sl No.: 35