- 1 - NC: 2025:KHC-D:6600-DB RFA No. 100472 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF APRIL 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100472 OF 2023 (SP) BETWEEN: SRI. BHIMAPPA S/O. RAMAPPA TUGADALI AGE: 93 YEARS, OCC: AGRICULTURE, R/O. MUGALKHOD VILLAGE, TAL: RAIBAG, DIST: BELAGAVI-591317. …APPELLANT (BY SRI. RAJENDRA R.PATIL, ADVOCATE) AND: 1. SMT. BHAGYASHRI W/O. LATE CHIKKAYYA MATHAD, AGE: 33 YEARS, OCC: HOUSEHOLD AND AGRICULTURE, R/O. BANDIGANI, TAL: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587311. 2. SMT. DANESHWARI W/O. LATE CHIKKAYYA MATHAD, AGE: 34 YEARS, OCC: HOUSEHOLD AND AGRICULTURE, R/O. BANDIGANI, TAL: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587311. 3. KUMAR SHIVAPADMANAM S/O. LATE CHIKKYYA MATHAD, AGE: 9 YEARS, OCC: STUDENT. 7. KUMAR AMARNATH S/O. LATE CHIKKAYYA MATHAD, AGE: 7 YEARS, OCC: STUDENT, Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.25 14:29:53 +0530 - 2 - NC: 2025:KHC-D:6600-DB RFA No. 100472 of 2023 RESPONDENTS NO.3 AND 4 ARE MINOR REPRESENTED BY THEIR NATURAL MOTHER MINOR GUARDIAN RESPONDENT NO.2. …RESPONDENTS (BY SRI. RAHUL S.KUNTOJI, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 01.03.2021 PASSED IN O.S. NO.189/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACTBARRED BY PERIOD OF LIMITATION. THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is by the defendant who has questioned the judgment and decree rendered in O.S.No.189/2019. The trial Court has placed the defendant exparte and has proceeded to partly decree the suit filed by the plaintiffs thereby directing the defendant to refund earnest money of Rs.15,00,000/- with interest at the rate of 6% per annum from the date of decree within 90 days. - 3 - NC: 2025:KHC-D:6600-DB RFA No. 100472 of 2023 2. For the sake of brevity, the parties are referred to as per their rank before the trial Court. 3. The plaintiffs instituted the present suit seeking the relief of specific performance of contract based on an agreement of sale dated 02.07.2014. It is the case of the plaintiffs that the defendant agreed to sell the suit schedule property for a total sale consideration of Rs.15,50,000/- and received a sum of Rs.15,00,000/- as part consideration. Pursuant thereto, the defendant executed the agreement of sale on 02.07.2014. Despite repeated requests, the defendant failed to complete the transaction by receiving the balance amount of Rs.50,000/-. Consequently, the plaintiffs issued a legal notice calling upon the defendant to execute a registered sale deed upon receipt of the remaining consideration. The present suit is filed by the legal heirs of the original agreement holder, Chikkayya S/o Danayya Mathad, asserting that they have always been ready and willing to perform their part of the contract. The trial Court, noting - 4 - NC: 2025:KHC-D:6600-DB RFA No. 100472 of 2023 the refusal report on service of summons (shara), proceeded to place the defendant ex parte. 4. In order to establish their claim, the plaintiffs examined Plaintiff No.5 as PW-1. Additionally, two other witnesses were examined as PWs-2 and 3. In total, four documents were produced in support of the plaintiffs’ case. Although the trial Court answered Issues Nos.1 and 2 in the affirmative, it declined to grant the discretionary relief of specific performance. Instead, the suit was decreed in part by directing refund of the part consideration amount of Rs.15,00,000/- with interest at the rate of 6% per annum. 5. The principal ground urged in the present appeal is that there was no proper service of summons on the defendant by the trial Court, rendering the judgment and decree unsustainable in law. 6. The learned counsel for the appellant has further contended that the entire trial proceedings, including the recording of evidence, were conducted during - 5 - NC: 2025:KHC-D:6600-DB RFA No. 100472 of 2023 the initial phase of the COVID-19 pandemic, during which time the defendant was unable to engage counsel and effectively contest the suit. On this ground as well, it is submitted that the judgment and decree of the trial Court are vitiated and warrant remand for retrial. 7. On the contrary, learned counsel appearing for the respondents/plaintiffs submits that the defendant had ample opportunity to appear and contest the proceedings. It is contended that the appropriate remedy available to the defendant lies under Order IX Rule 13 of the CPC, and the question of service of summons cannot be re- examined in an appeal filed under Section 96(2) of the CPC. 8. In light of the rival contentions, the following points arise for consideration in this appeal: (1) Whether the trial Court erred in placing the defendant ex-parte on the basis of service of summons, particularly in view of the Karnataka High Court Amendment to Order V Rule 9 CPC, whereby - 6 - NC: 2025:KHC-D:6600-DB RFA No. 100472 of 2023 sub-rules (5-A) and (5-B) mandate that the serving officer must file an affidavit detailing the manner of service, and false affidavits may attract perjury proceedings and blacklisting of the concerned courier agency? (2) Whether the judgment and decree passed by the trial Court is liable to be set aside on the ground that the evidence was recorded during the first phase of the COVID-19 pandemic, thereby depriving the defendant of an opportunity to effectively participate and lead rebuttal evidence? Findings on Point Nos.1 and 2: 9. Although the present appeal is filed under Section 96(2) of the Code of Civil Procedure, having regard to the peculiar facts and circumstances of the case, this Court is inclined to examine the grievance raised by the defendant on merits. It is trite that an ex parte decree is ordinarily to be challenged by invoking the provisions under Order IX Rule 13 of CPC. However, the factual - 7 - NC: 2025:KHC-D:6600-DB RFA No. 100472 of 2023 matrix presented herein justifies a deeper scrutiny under the appellate jurisdiction. A perusal of the trial Court record reveals that the learned Trial Judge proceeded to record evidence and dispose of the suit ex parte during the first wave of the COVID-19 pandemic. This is despite the fact that both the Hon’ble Supreme Court and this Court had issued advisories and administrative directions to all subordinate courts to proceed cautiously and avoid passing adverse orders during the said period owing to the extraordinary circumstances and restrictions in place. 10. Upon meticulous examination of the original records, it is evident that the entire evidence, both of the plaintiffs and of two independent witnesses was recorded during the early phase of the COVID-19 pandemic, a time when access to courts, mobility, and legal representation were significantly hindered. Furthermore, the postal endorsement (shara) placed on record, which formed the basis for the trial Court to deem service of summons as effected, merely states “personally refused.” However, - 8 - NC: 2025:KHC-D:6600-DB RFA No. 100472 of 2023 such an endorsement, in the absence of a supporting affidavit as mandated under sub-rule (5-A) of Order V of the CPC (as amended by the Karnataka High Court Notification dated 29.12.2006), falls short of the procedural compliance required under law. 11. The insertion of sub-rules (5-A) and (5-B) by the Karnataka High Court Amendment clearly mandates that when service is sought to be established on the basis of refusal, the person effecting service is required to file an affidavit in a language known to him, stating inter alia the circumstances of service and identifying the persons present at the time of such service. For ease of reference, sub-rule (5-A) reads as under: "(5-A) Whenever orders on deemed service are required to be made on the basis of endorsement of such service or refusal under this rule, the person effecting service shall file an affidavit in the language known to him stating, inter alia, as to who were all present at the time of service. The Court, on consideration of such affidavit, shall pass orders as deemed service." - 9 - NC: 2025:KHC-D:6600-DB RFA No. 100472 of 2023 12. The absence of such an affidavit renders the learned Trial Judge’s endorsement that summons had been duly served not only defective but also contrary to the mandatory procedure contemplated under the rules. This failure vitiates the foundational basis for proceeding ex parte against the defendant. 13. In light of the foregoing, and bearing in mind that the subject matter of the dispute pertains to immovable property, this Court is of the considered opinion that the defendant ought to be afforded a fair opportunity to contest the matter on merits. The interest of justice would be best served by setting aside the judgment and decree passed by the trial Court and remitting the matter for a fresh trial. Accordingly, the points formulated for consideration are answered in the affirmative. 14. Since both parties are represented by their respective counsel in the present appeal, it is unnecessary to direct issuance of fresh summons. The parties shall - 10 - NC: 2025:KHC-D:6600-DB RFA No. 100472 of 2023 appear before the trial Court on the date specified hereinbelow without awaiting any further notice from the trial Court. 15. In view of the above discussion, this Court proceeds to pass the following: ORDER i. The appeal is allowed. ii. The judgment and decree dated 01.03.2021 passed by the learned Senior Civil Judge and JMFC in O.S.No.189/2019 is hereby set aside. iii. The matter is remitted back to the trial Court for fresh trial in accordance with law and on its own merits. iv. The parties are directed to appear before the trial Court on 10.06.2025 without expecting service of fresh summons or notice. - 11 - NC: 2025:KHC-D:6600-DB RFA No. 100472 of 2023 v. Liberty is reserved to the defendant to file written statement within a period of four weeks from the said date of appearance. vi. All rival contentions of the parties are kept open and the trial Court shall adjudicate the matter uninfluenced by any observations made in this judgment. vii. The Registry is directed to refund the court fee to the appellants in accordance with Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958, subject to compliance with necessary formalities. Draw decree accordingly. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE CA Ct:VH List No.: 1 Sl No.: 21