- 1 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 IN THE HIGH COURT OF KARNATAKA AT DHARWAD DATED THIS THE 18TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CIVIL REVISION PETITION NO. 100098 OF 2021 BETWEEN: SUMANGALA @ BASAMMA W/O. TOTAPPA ANGADI AGE: 57 YEARS, OCC: AGRICULTURE R/O. BENAKAL VILLAGE -583232 TQ. YELBURGA, DIST. KOPPAL. …PETITIONER (BY SRI C.S SHETTAR, ADVOCATE.) AND: N.DORESWAMY NARESHAN AGE: 61 YEARS, OCC: BUSINESS, R/O. KUKANOOR, DIST: KOPPAL NOW AT NO. 23, MAILASANDRA, BENGALURU SOUTH, BENGALURU (URBAN)-560060. …RESPONDENT THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CIVIL PROCEDURE CODE, 1908, PRYING TO SET ASIDE THE ORDER DATED 18.11.2021 AT ANNEXURE-E PASSED BY THE LEARNED CIVIL JUDGE AND JMFC, YELBURGA, IN CIVIL MISC.PETITION NO.03/2020 AND CONSEQUENTLY THE PETITION IN CIVIL MISC.NO.03/2020 FILED BEFORE CIVIL JUDGE AND JMFC COURT AT YELBURGA BE DISMISSED, IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, ORDER IS MADE THEREIN AS UNDER: MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.09.24 10:41:50 +0530 - 2 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) Heard the arguments of learned counsel for petitioner. 2. This is the petition filed by the Revision Petitioner challenging the order passed by the Civil Judge and JMFC, Yelburga, in Civil Miscellaneous Petition No.3 of 2020 dated 18.11.2021 on the application filed under Section 5 of the Limitation Act and also a petition under Order IX Rule 13 of the Civil Procedure Code, 1908. 3. For the purpose of convenience and easy reference, the ranking of the parties is referred to as per their status before the trial Court. 4. The brief facts leading to this revision petition are that the respondent is the absolute owner of the property in question and he has executed a registered sale agreement dated 18.02.2013. As the respondent failed to heed the request of the petitioner to execute the register sale deed, the petitioner issued legal notice on 14.10.2014 - 3 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 calling upon the respondent to come and execute the registered sale deed. The said notice was unserved. Then the petitioner has filed a suit for specific performance of contract, in which the notice was not served. Hence paper publication was taken and the same was duly published despite which the respondent remained absent. Hence, the trial Court has recorded the evidence of the petitioner and decreed the suit exparte in favour of this petitioner. Being aggrieved by this exparte judgment and decree, the respondent had filed a petition under Order IX Rule 13 of CPC in Civil Miscellaneous Petition No.3 of 2020 before the Civil Judge, Yelburga, along with an application under Section 5 of the Limitation Act. 5. The petitioner has filed objections to the main petition and also interlocutory application. The trial Court has recorded statement of witnesses and allowed the interlocutory application filed under Section 5 of the Limitation Act and also petition filed under Order IX Rule 13 of CPC, and exparte judgment and decree passed by the - 4 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 trial Court was set aside and restored the suit. Being aggrieved by the said order, the petitioner has preferred this revision petition. 6. Learned counsel for the petitioner would submit that the impugned order is contrary to law and facts. The trial Court has failed to appreciate the admissions of the respondent and has passed the order which is opposed to the correct legal principles. Further, it is stated that it has come on record more particularly in page No.8 of deposition of PW1 that respondent No.8 was present before the Court on 07.08.2015, 23.09.2015 and 28.09.2015, i.e., when the matter was taken up by the trial Court (pending suit). The said admission clearly goes to transpire that the factum of institution of the suit was well within the knowledge of the respondent. Taking note of the same, the trial Court ought to have dismissed the petition. Further, it is submitted that after obtaining the ex-parte judgment in decree, the petitioner had filed Execution Petition No.9 of 2016 and the execution petition was closed. The Court has executed the - 5 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 registered sale deed in favour of the present petitioner. The same was not considered by the trial Court. Absolutely there was no sufficient cause to condone the abnormal delay of 1558 days in filing the miscellaneous petition by this respondent. However, the trial Court has allowed the petition as well as the interlocutory application filed under Section 5 of the Limitation Act. The same is not sustainable in law. On all these grounds the petitioner has sought for allowing this petition. 7. The respondent appeared before the Court through his counsel. Thereafter the learned counsel has retired from the case by issuing notice through registered post. Thereafter the respondent remained absent. Hence, the arguments on behalf of respondent is taken as nil. 8. I have examined the materials placed before this Court. The respondent had filed a petition under Order IX Rule 13 of CPC along with an application under Section 5 of the Limitation Act. To prove the case of the petitioner, one - 6 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 witness was examined as PW1 and 12 documents were marked as Exhibits P1 to P12 and closed the petitioner’s side evidence. The respondent adduced evidence of two witnesses as RW1 and RW2 and 06 documents were marked as Exhibits D1 to D6. On a perusal of the evidence of both the sides, the trial Court has observed in paragraph 10 as under. ”10. Point No.1: The petitioner filed this petition for setting aside exparte decree passed against him in OS NO.316/2014 dated 28.10.2015. The respondent filed the said suit for claiming the relief of specific performance of contract. The petitioner to prove his case examined his general power of attorney holder as PW.1, and in her examination in chief affidavit reiterated the petition averments. The petitioner has produced the documents as per Ex.P.1 tο P.12, among these documents Ex.P.1 and P.2 are the certified of copies of judgment and decree passed by this Court in OS NO.316/2014 dated 28.10.2015, on careful perusal of judgment and decree noticed that, the learned predecessor opined that the suit summons was duly served to defendant, despite of service of suit summons defendant remained absent before the Court, in this background it is useful to peruse endorsement made on suit summons, On perusal of Ex.P.10 and P.11 discloses that, - 7 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 at the time of serving of suit summons the defendant/petitioner was not present in the house, so that reason the Court bailiff enquired the local citizens of the area and they informed that, the defendant/petitioner had left the village about two years ago, accordingly the court bailiff submitted his report stating the suit summons was not served for want of correct address. The defendant has produced Kannada Prabha paper publication dated 30.03.2015 marked as Ex.D.5 in which the suit summons was published, on careful perusal of paper publication noticed that, the suit summons was published in Koppal edition page, that means the suit summons published in the news paper which is known to the general public of Koppal district, but not to the residents of Bengaluru district. On perusal of Ex.P.1, P.10 and P.11 clearly establish the suit summons was not duly served to petitioner/defendant, because at the time of serving the suit summons he was not residing at Kukanoor village, further on perusal of Ex.P.12/family ration card of petitioner discloses that, the petitioner is the resident of Mailasandra, Bengaluru and he took ration since 2013, and the ration card was issued to him on 11.11.2012, Ex.P.6 is the election voter identity card of petitioner, wherein the address of the petitioner mentioned as Mailsandra, Bengaluru and the said voter identity card was issued on 07.03.2009, that means the petitioner was residing in the Bengaluru since 2009, under such circumstances how it can be possible to serve the summons to his Kukanoor address. - 8 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 The purpose of audi alterm partem is to give fair opportunity to the parties to putforth their case. If the court declines to set aside the exparte decree, then it is clear violation of principles of natural justice, which cannot be taken away by applying strict rules, it is undoubted that, the suit summons was not served in s proper manner, even the paper publication taken by the respondent restricted only to Koppal district. The RW.1 in his cross examination clearly admitted that, the legal notice issued to petitioner was unserved with an endorsement party out of station, thereafter the notice was published in Navoday daily news paper, but the said news paper widely circulated in Koppal, Gadag and Ballari districts, the court cannot recognize the news papers which are not widely circulated throughout the state, the witness further admitted that, the suit summons issued to defendant/petitioner was unserved because petitioner/defendant left the Kukanoor about 2 years ago. Therefore the admission given by the RW.1 clearly establish that, the suit summons was not duly served to petitioner/defendant, under such circumstance the exparte decree does not sustainable in any manner. The learned counsel for petitioner placed reliance on the various judgments in support of case of petitioner. The first decision on which the learned counsel for petitioner placed his reliance is reported in 2011(5) KCCR SN 751(SC) between Parimal Vs Veena @ Bharti, in this decision the Hon'ble Supreme Court of India has - 9 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 held that, Exparte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented b sufficient cause from appearing when the case was called on for hearing. The next decision relied on by the learned counsel for petitioner is reported in 2020(6) KCCR 606 between Nagarathna Vs M.L. Chethan Kumar and others, in this case the Hon'ble High Court of Karnataka has held that. Court found that the appellant/defendant was not served personally with the suit summons and the summons issued to her was served through her mother. Provisions enables the defendant who is placed exparte to apply for setting aside exparte order. The service of summons to mother of defendant is not proper service of summons, because the summons has to be served personally to the defendant. The next decision relied upon by the learned counsel for petitioner reported in 2009 (3) KCCR SN 78 between State of Jharkhand and others Vs Ashok Kumar Chokhani and others, in this case the Hon'ble Supreme Court of India has held that, While deciding an application of condonation of delay in filing the appeal, the High Court could not go into the merits of the same. Therefore, the ratio laid down in the above said decisions clearly applicable to case on hand, because the suit summons issued to defendant/petitioner was not duly served, even substitute service of summons was also not duly - 10 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 published, under such circumstances the court has to set aside the exparte decree and to give an opportunity to the petitioner to file his written statement. The learned counsel for respondent in support of his arguments placed reliance on the un-reported judgment of Hon'ble Supreme Court of India, arising out of SLP (Civil) No. 1855/2020 between Vishwabandhu Vs Sri Krishna and another, in this case the Hon'ble Supreme Court of India has held that, the notice issued to respondent through registered post was refused by the respondent, under such circumstances it is to be presumed that the suit summons was duly served, the court cannot insist for taking other mode to serve the summons. On going through the ratio laid down in the above said decision it is clear that, the facts of case discussed in the decision and fact of the present case are totally different, because the suit summons issued to petitioner/defendant was not duly served, and also legal notice issued by learned counsel for respondent was also not served, under such circumstances the court cannot presume that the suit summons was duly served, hence the ratio laid down in the decision referred by the learned counsel for respondent is not applicable to the case on hand. Therefore, on careful perusal of oral and documentary evidence it is clear that, the suit summons issued petitioner was not duly served, and the paper publication as takem in Koppal edition, as such the exparte decree passed by - 11 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 this court is to be set aside, the petitioner has explained the reasons for non filing of petition well within period, and the delay caused in filing this petition is to be compensated by imposing punitive cost, accordingly I answer point no.1 in the affirmative.” 9. The trial Court has discussed in detail and observed that summons was not duly served to the respondent. In addition to this, Exhibit P3 the order sheet pertaining to O.S.No.316 of 2014 reveals that the suit was filed on 20.12.2014. The Court has passed an ex-parte order granting temporary injunction as sought for on the same day and directed the present petitioner who is plaintiff in O.S.No.316 of 2014 for compliance of Order XXXIX Rule 3(a) of CPC, but the order sheet Exhibit P3 does not reveal as to the compliance of Order XXXIX Rule 3(a) of CPC. Additionally, the petitioner who has filed the suit has not filed the declaration as to the registered address of the defendant as required under Order VI Rule 14A of CPC. The Chief Ministerial Officer or the concerned Presiding Officer has not insisted to comply the mandatory provisions of - 12 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 Order VI Rule 14A of CPC. Without compliance of mandatory provisions of Order VI Rule 14A of CPC, the concerned Presiding Officer has entertained this Original Suit No.316 of 2014. The notice issued through RPAD against the respondent is also not served. The same was unserved. On the next date i.e., on 27.02.2015 the present petitioner has filed I.A.No.3 under Order V Rule 20(1A) of CPC for paper publication. The order sheet reveals that the concerned Presiding Officer has not passed any speaking order on I.A.No.3 filed under Order V Rule 20(1A) of CPC and straight away without passing any speaking order, the concerned Presiding Officer has passed an order to issue paper publication. Without assigning any reasons for allowing I.A.No.3, the concerned Presiding Officer has passed the order for paper publication, which is contrary to the provision of Order V Rule 20(1A) of CPC and accordingly the same is not sustainable in law. - 13 - HC-KAR NC: 2025:KHC-D:12630 CRP No. 100098 of 2021 10. For the aforesaid reasons, I do not find any error or illegality or infirmity in the impugned order. Hence I proceed to pass the following: ORDER i) The petition is dismissed. ii) Send a copy of this order along with the records to the concerned trial Court. Sd/- (G BASAVARAJA) JUDGE MRK CT-CMU LIST NO.: 1 SL NO.: 70