- 1 - HC-KAR NC: 2025:KHC-D:8110 MFA No. 105771 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 105771 OF 2023 (CPC) BETWEEN: MR. ANAND ACHYUTRAO KULKARNI, AGE: MAJOR, OCC: BUSINESS, R/AT: PLOT NO.14, 9TH CROSS, VIDYAGIRI, BAGALKOT, DIST: BAGALKOT-587 102, KARNATAKA, INDIA. … APPELLANT (BY SRI. J.S. SHETTY, ADVOCATE) AND: SHRI SHIVSAGAR SUGAR AND AGRO PRODUCTS LTD., A PUBLIC LIMITED COMPANY INCORPORATED UNDER THE RELEVANT PROVISION OF THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AS PER RECORDS OF ROC, PUNE, FLAT NO.1, SHIVASAVALI APARTMENT, VISHWAS HOUSING SOCIETY, 100 FT. ROAD, SANGLI-416 416, MAHARASHTRA, HAVING ITS FACTORY OFFICE AT VILLAGE UDAPUDI, TAL: RAMDURG, DIST: BELAGAVI, KARNATAKA, THROUGH ITS AUTHORIZED REPRESENTATIVE. … RESPONDENT (BY SRI. SANJAY S. KATAGERI, ADVOCATE) THIS MFA IS FILED UNDER ORDER 43 RULE 1(D) AND SECTION 104 OF CPC, PRAYING SET ASIDE THE ORDER DATED 25.09.2023 PASSED IN MISC. NO.1/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, RAMADURGA AND SET ASIDE THE EXPARTE JUDGMENT AND DECREE DATED 27.04.2016 PASSED IN O.S. NO.67/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, RAMADURG, AT: RAMADURGA. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:8110 MFA No. 105771 of 2023 THIS APPEAL, COMING ON FOR HEARING-INTERLOCUTORY APPLICATION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR) The defendant in O.S No.67/2015 and the petitioner in Misc.No.1/2016 has preferred this appeal, questioning the order dated 25.09.2023 passed by the Court of Senior Civil Judge, Ramdurg (for short, ‘Appellate Court’), thereby, the petition filed under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) praying for setting aside the exparte judgment and decree dated 27.04.2016 passed in O.S.No.67/2015 by the Court of Senior Civil Judge, Ramdurg (for short, ‘Trial Court’), is dismissed. 2. The respondent herein who is plaintiff in O.S No.67/2015 has filed suit for recovery of money. As per opinion formed by the Trial Court in the suit, the defendant/appellant herein remained exparte. Therefore, the Trial Court has passed exparte judgment and decree noting down that the defendant, in spite of service of notice on him, remained absent. Therefore, the Trial Court has passed the exparte judgment and decree. - 3 - HC-KAR NC: 2025:KHC-D:8110 MFA No. 105771 of 2023 3. Questioning the same, the defendant has preferred petition in Misc.No.1/2016 by invoking Order IX Rule 13 of the CPC before the Appellate Court. But the Appellate Court has dismissed the said petition. Being aggrieved by it, the present appeal is preferred. 4. It is submitted by the learned counsel for the appellant/defendant that there was no proper service of summons on the defendant. Hence, he has not received suit summons, but wrongly placed exparte. Therefore, prays for one more opportunity to contest the suit by allowing this appeal. 5. On the other hand, learned counsel for the respondent/plaintiff submitted that there was proper service of summons on the defendant/appellant. But deliberately the defendant has avoided appearing before the Trial Court, in spite of service of summons to him. Therefore, this is rightly considered in the suit as well as in the miscellaneous petition. Therefore, the appellant/defendant does not deserve any leniency in this regard. It is further submitted that the defendant has appeared before the Company Law Tribunal at Mumbai. Therefore, defendant knew the suit proceedings. - 4 - HC-KAR NC: 2025:KHC-D:8110 MFA No. 105771 of 2023 Hence, this shows the deliberate act on the part of defendant in not appearing in the suit. Therefore, prays to dismiss the appeal. 6. Considering the rival submissions, one thing is made out that the defendant has not contested the suit. Whether the defendant was lawfully served summons in the suit or not is not a question before this Court. But the defendant has preferred the miscellaneous petition before the Appellate Court and also filed appeal in this Court, which shows the intension of the defendant to contest the suit. 7. Therefore, this Court is of the opinion to give one more opportunity to the defendant to contest the suit as per law. Therefore, the impugned orders passed by the Appellate Court in Misc.No.1/2016 and exparte judgment and decree passed by the Trial Court in O.S.No.67/2015 are liable to be set aside and the matter needs to be remanded to the Trial Court for fresh consideration. 8. At the instance of the appellant/defendant, the matter is being remanded to the Trial Court. Therefore, the appeal is liable to be allowed with cost of Rs.1,00,000/- - 5 - HC-KAR NC: 2025:KHC-D:8110 MFA No. 105771 of 2023 (one lakh rupees only) payable by the defendant to the plaintiff. 9. Hence, I proceed to pass the following: ORDER i) The appeal is allowed with cost of Rs.1,00,000/-. ii) The order dated 25.09.2023 passed in Mis.No.1/2016 on the file of Senior Civil Judge, Ramdurg and the exparte judgment and decree dated 27.04.2016 passed in O.S.No.67/2015 on the file of Senior Civil Judge, Ramdurg, are set aside. iii) Cost of Rs.1,00,000/- (one lakh rupees only) shall be paid by the defendant to the plaintiff. iv) The matter is remanded to the Trial Court for fresh consideration. - 6 - HC-KAR NC: 2025:KHC-D:8110 MFA No. 105771 of 2023 v) Both the parties are at liberty to adduce further evidence, if so they desire. vi) If the defendant fails to pay cost of Rs.1,00,000/- (one lakh rupees only) within three months to the plaintiff, then the judgment and decree passed by the Trial Court would revive. vii) The Trial Court shall dispose of the case as early as possible within a period of one year from the date of appearance of the parties. viii) Both the parties shall appear before the Trial Court on 28.07.2025 without awaiting for any notice from the Court. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP CT:BCK LIST NO.: 1 SL NO.: 28