- 1 - HC-KAR NC: 2025:KHC:32232 MFA No. 3035 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.3035 OF 2024 (CPC) BETWEEN: 1. PRAJWAL S/O LATE ANANDA KUMAR, AGED ABOUT 19 YEARS 2. SMT. MANGALA GOWRI W/O LATE ANANDA KUMAR AGED ABOUT 40 YEARS BOTH ARE RESIDING AT NO.17/1, BYRAVESHWARA NILAYA (NAYANADEEPA) 5TH MAIN ROAD, SWIMMING POOL EXTENSION, SRIKANTESHWARANAGARA, MAHALAKSHMI LAYOUT, BENGALURU - 560 096. …APPELLANTS (BY SRI G.BALAKRISHNA SHASTRY, ADVOCATE) AND: SMT. SUJATHA W/O RAJANNA AGED ABOUT 43 YEARS R/A NO.Q-132, POLICE QUARTERS, MYSORE ROAD, BENGALURU – 560 026. …RESPONDENT (BY SRI MOHAN R., ADVOCATE FOR C/R (CP.6726/204)) Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32232 MFA No. 3035 of 2024 THIS MFA FILED U/O 43 RULE 1(d) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 25.03.2024 PASSED IN MISC.NO.572/2017 ON THE FILE OF THE XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-7, DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT Defendant Nos.2 and 3 in OS.No.5614/2012 has preferred this appeal challenging the order dated 25.03.2024 passed in Misc.No.572/2017 by XXII Addl. City Civil and Sessions Judge, Bengaluru CCH-7, thereby the petition filed under Order 9 Rule 13 of CPC praying to set aside the exparte judgment and decree passed against them in O.S.No.5614/2012 dated 31.01.2014 is dismissed. 2. The respondent/plaintiff has filed the suit in O.S.No.5614/2012 for partition and separate possession by metes and bounds and the suit is decreed exparte on the pretext that the defendants have been served with suit summons and appeared through Advocate, but did not file - 3 - HC-KAR NC: 2025:KHC:32232 MFA No. 3035 of 2024 the written statement and not cross examined PW.1 in spite of giving opportunities. Therefore, the trial Court has decreed the suit on 31.01.2014. Later on, coming to know of this fact that exparte judgment and decree is passed, defendant Nos.2 and 3 have filed Misc.No.572/2017 under Order 9 Rule 13 of CPC, but the petition came to be dismissed. There is a delay of 1087 days in filing the said misc. petition and the trial Court after forming opinion that there are no sufficient reasons explained for condonation of delay, therefore, dismissed the petition. Therefore, the instant appeal is filed. 3. Learned counsel for the appellants submitted that appellant No.2/defendant No.3 is a widow and her husband Anand Kumar died on 10.11.2009. Thereafter, the plaintiff has filed the suit for partition and separate possession on 03.08.2012. During the pendency of the suit, her minor son (defendant No.1 in O.S.No.5614/2012) also died. Therefore, when appellant No.2/defendant No.3 was under trauma that her husband died and she was - 4 - HC-KAR NC: 2025:KHC:32232 MFA No. 3035 of 2024 struggling hard and also to obtain appointment on compassionate ground and thereafter, the suit is filed by the plaintiff and during the pendency of the suit, her minor son is also died, therefore, on these reasons, appellant No.2/defendant No.3 could not contest the suit. 4. Further submitted that the defendants engaged the services of Advocate, but the Advocate did not appear except filing vakalath and has not contested the suit. Therefore, as the suit being uncontested by the Advocate and hence, for these reasons, the defendants could not approach the Advocate. But in the meantime, exparte judgment and decree is passed. Therefore, on these reasons, there is a delay in preferring the misc. petition. Hence, this may be considered in a magnanimous way considering the plight undergone by the appellants. Therefore, requested to allow the appeal and remand the matter to the trial Court to consider the matter on its merits. - 5 - HC-KAR NC: 2025:KHC:32232 MFA No. 3035 of 2024 5. On the other hand, learned counsel for the respondent/plaintiff submitted that defendant No.3 has not exercised due diligence in spite of being a Government Servant and well versed with legal affairs. Therefore, her statement cannot be believed that she does not know the worldly “affairs”. There is enormous delay of 1087 days in preferring the petition, but there is no cogent reason assigned to condone the delay, which is rightly considered by the trial Court. Thus, the trial Court has dismissed the suit. Hence, prays to dismiss the appeal. 6. Further submitted that defendant No.3 has filed the application for mutating her name in the revenue records after demise of her husband. This goes to show that defendant No.3 is well versed with legal affairs. Therefore, defendant No.3 has not exercised due diligence, which is rightly considered by the trial Court. Further submitted that even on the quantum of share allotted, it is correctly observed by the trial Court. Therefore, even if the suit is contested once again, the same would be the - 6 - HC-KAR NC: 2025:KHC:32232 MFA No. 3035 of 2024 result as passed under the impugned judgment and decree. Therefore, prays to dismiss the appeal. 7. Considering the materials available at this stage while considering the appeal as to whether the appellants are entitled for opportunity to contest the suit, the nature of the suit property is not in dispute. It is the assertion of the defendants that the husband of defendant No.3 had put up construction on the suit property, therefore, this is one of the contention to be taken in the suit and if an opportunity is given to the defendants, then the suit would be contested on this point. Considering the admitted facts that the husband of defendant No.3 namely Ananda Kumar died on 10.11.2009 and the plaintiff has filed the suit on 03.08.2012. The plaintiff has become a widow and her husband was a Government Servant. Therefore, defendant No.3 was struggling for getting compassionate appointment that would take some months. When member of the family dies, quite naturally, there would be trauma in the family. - 7 - HC-KAR NC: 2025:KHC:32232 MFA No. 3035 of 2024 8. When this being the fact, after death of her brother Anand Kumar, the plaintiff has filed the suit on 03.08.2012 for partition and separate possession. During the pendency of the suit, defendant No.1 who is the minor son of defendant No.3 also died. Therefore, though, the defendants have engaged the services of an Advocate, but could not give instruction to conduct the suit because of the reasons stated above. Therefore, when the suit is filed, defendant No.3 had two minor children and one child died i.e., defendant No.1. Therefore, there were no other family members to look after the family of the defendants. Therefore, on this struggling process, there could be chances of not paying attention to contest the suit filed by the plaintiff. Therefore, under these circumstances, suit has become uncontested one. When considering all these factors, the delay of 1087 days cannot make hamper to give justice on substantial reasons. 9. It is a trite law that any dispute must be resolved on its merits after giving opportunities to both - 8 - HC-KAR NC: 2025:KHC:32232 MFA No. 3035 of 2024 sides rather to approach on technicalities. The aspect of delay is one of the technicalities. Though, there is a delay of 1087 days in filing the misc. petition, but this is to be considered in the context of trauma faced by defendant No.3 as above discussed. Therefore, the Court is of the opinion to give one opportunity to the defendants to contest the suit. Hence, the defendants make out sufficient ground to allow the petition. Therefore, order of dismissing the petition by the trial Court is liable to be set aside. 10. Hence, I proceed to pass the following ORDER i. The appeal is allowed. ii. The order dated 25.03.2024 passed in Misc.No.572/2017 by XXII Addl. City Civil and Sessions Judge, Bengaluru CCH-7, thereby the petition filed under Order 9 Rule 13 of CPC praying to set aside the exparte judgment and decree passed against them in - 9 - HC-KAR NC: 2025:KHC:32232 MFA No. 3035 of 2024 O.S.No.5614/2012 dated 31.01.2014 is set aside. iii. The matter is remanded back to the trial Court to consider the suit on its merits after receiving evidence from both sides. iv. The plaintiff and defendants shall appear before the trial Court on 16.09.2025 without expecting notice from the Court. v. All the contentions are kept open. vi. The trial Court is directed to consider the case on its merits and expedite the trial and dispose of the suit within a period of 1½ years from the date of 16.09.2025. vii. No order as to costs. viii. Registry shall transmit the TCRs to the concerned Court forthwith. SD/- (HANCHATE SANJEEVKUMAR) JUDGE PB, List No.: 1 Sl No.: 35