- 1 - HC-KAR NC: 2025:KHC:44114 CRP No. 469 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CIVIL REVISION PETITION NO. 469 OF 2019 BETWEEN: SMT. JAYAMMA W/O MARIHONNAIAH AGED ABOUT 64 YEARS, R/AT HOUSE NO.189/B, 4TH MAIN ROAD, 14TH CROSS, M.C.LAYOUT, VIJAYANAGAR, BANGALORE - 560 040. …PETITIONER (BY SRI. SHRIDHAR N. HEGDE, ADVOCATE) AND: 1. T. BHAGYA D/O LATE THOPAIAH W/O YADHUGIRI, AGED ABOUT 45 YEARS, R/AT NO.808, 8TH CROSS, ULLALA UPANAGAR, BANGALORE - 560 056. 2. KRISHNAMURTHY S/O LATE THOPAIAH, AGED ABOUT 59 YEARS, R/AT NO.608, BEHIND MARAMMA TMEPLE, OPP. TO SHANIMATHMA TEMPLE ROAD, NEAR HOUSE OF DODDANNA, ULLALA UPANAGAR, BANGALORE - 560 056 3. SMT. SAVITRI W/O LATE GANGADHAR, AGED ABOUT 44 YEARS, R/AT DOOR NO 14, Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:44114 CRP No. 469 of 2019 OLD BUS STAND ROAD, 1ST MAIN, ULLALA UPANAGARA, BANGALORE - 560 056. 4. G.KIRAN S/O LATE GANGADHAR, AGED ABOUT 25 YEARS, R/AT DOOR NO. 14, OLD BUS STAND ROAD, 1ST MAIN, ULLALA UPANAGARA, BANGALORE - 560 056. 5. LAKSHMISHA S/O LATE GANGADHAR, AGED ABOUT 22 YEARS, R/AT DOOR NO. 14, OLD BUS STAND ROAD, 1ST MAIN, ULLALA UPANAGARA, BANGALORE - 560 056. …RESPONDENTS (BY SRI. JAYAPRAKSH, ADVOCATE FOR R2; R1, R3, R4 AND R5 ARE SERVED AND UNREPRESENTED) THIS CRP IS FILED UNDER SEC. 115 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.09.2019 PASSED IN MIS. APPEAL NO. 31-2013 ON THE FILE OF THE PRINCIPAL JUDGE AND CJM., TUMAKURU ALLOWING THE APPEAL AND SETTING ASIDE THE ORDER DATED 19.04.2013 PASSED ON IA NO. I IN MIS.P.NO.17/2009 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC-III AT TUMKUR REJECTING THE IA NO.I FILED UNDER SEC. ORDER IX RULE 13 OF CPC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:44114 CRP No. 469 of 2019 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL ORDER Heard Sri.Sridhar N. Hegde, learned counsel for the revision petitioner and Sri.Jayaprakash, learned counsel for respondent No.2. 2. Plaintiff is the revision petitioner challenging the validity of the order passed by the First Appellate Court in Misc. Appeal No.31/2013 dated 17.09.2019 whereby said appeal came to be allowed and consequently thereof, order passed in Misc. Petition No.17/2009 dated 19.04.2013 is set aside and defendant is permitted to contest the suit in O.S.No.725/2008. 3. Facts in brief which are utmost necessary for disposal of the revision petition are as under: 3.1. A suit in O.S.No.725/2008 came to be filed by the plaintiff for specific enforcement of the agreement to sell said to have been executed by the defendants. Defendants refused to receive the notice issued through Registered Post with Acknowledgement Due (hereinafter - 4 - HC-KAR NC: 2025:KHC:44114 CRP No. 469 of 2019 ‘RPAD’ for short) and thereafter, defendants were placed ex-parte. 3.2. Pursuant to the ex-parte decree, execution petition came to be filed and sale deed got executed through the process of Court. 3.3. In the meantime, defendants filed a petition under Order IX Rule 13 of Code of Civil Procedure (hereinafter ‘CPC' for short) in Misc. Petition 17/2009 on the file of II Additional Civil Judge and JMFC-III, Tumakuru. 3.4. Said petition on contest, came to be dismissed inter alia holding that defendants were watching the proceedings outside the Court. 4. Being aggrieved by the same, defendants filed an appeal before the Principal Senior Civil Judge and CJM, Tumakuru in MA No.31/2013. 5. Learned Judge in the First Appellate Court after securing the records, noted the fact that plaintiff managed - 5 - HC-KAR NC: 2025:KHC:44114 CRP No. 469 of 2019 to get the summons issued only through RPAD and there was no summons issued through the process of Court and felt that injustice has been caused to the defendants and allowed the appeal on payment of cost of Rs.5,000/- and set aside the order dated 19.04.2013 passed in Misc. Petition No.17/2009. 6. Being aggrieved by the same, plaintiff is before this court, in this revision. 7. Learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that a person who is not diligent, cannot take advantage of the provision under Order IX Rule 13 of CPC to seek an order of setting aside of the ex- parte. 8. He would further contend that learned Trial Judge in paragraph No.12 noted the admission made by one of the defendants who was examined as P.W.1 in Misc. Petition No.17/2009 which reads as under: - 6 - HC-KAR NC: 2025:KHC:44114 CRP No. 469 of 2019 “12. On perusal of Ex.P.5 and Ex.D.1, on 20/09/2008, it is ordered to issue process to the defendants i.e the Petitioners herein, which is returnable by 30/10/2008. Ex.D.2 discloses that the suit summons has been issued to the Petitioners herein by way of Registered Post Acknowledgement Due. It further discloses that on 25/10/2008 and on 27/10/2008, the consignment has been taken to the addressee and there is a shara to the effect that "party refused, returned to the sender". The date specified for the appearance of the Defendants was 30/10/2008 and on that date, the summons issued to the defendants were not yet returned. On 16/12/2008, it was returned and since the defendants were called out absent, no representation was made, hence defendants No.1 to 3 were placed ex-parte. It is undisputed fact that the summons issued to the defendants in O.S No.725/2008, have been returned as 'refused'. PW.1 in his evidence i.e examination in chief, deposed that they have not refused the notice issued by the court in said suit and the Respondent herein has manipulated the said endorsement or by the manipulation of the Post Master, it has been stated as 'refused'. PW.1 in his cross-examination, denied the fact that he suit summons, copy of the plaint and notice on the interim application has been served to the Petitioners by way of Registered Post in O.S No.725/2008. PW.1 in his cross-examination admitted that: "¸ÀzÀj zÁªÉAiÀÄ°è £Á£ÀÄ ¥Àæw ¸ÀÄ£ÁªÀuÁ ¢£ÁAPÀzÀAzÀÄ §AzÀÄ zÁªÉAiÀÄ£ÀÄß £ÉÆÃr ºÉÆÃUÀÄwÛzÉÝãÉAzÀgÉ ¸ÁQë £ÀÄrAiÀÄÄvÁÛgÉ. CUÀvÀå«zÁÝUÀ ªÀiÁvÀæ §gÀÄwÛzÉÝ.” On perusal of this admission of PW.1, it is not a stray admission or it has not been made by PW.1 without having any knowledge of the fact. In cross- examination of PW.1, he has stated that he has been completed L.L.B degree and he is a Director of television serial. Except the ground that the suit summons in O.S No.725/2008 has not been served - 7 - HC-KAR NC: 2025:KHC:44114 CRP No. 469 of 2019 to the Petitioners, no other reasons have been made out by the Petitioners for their non appearance on the date when the case is posted for hearing.” 9. He further contended that in the teeth of such admission, defendants contending that they were not knowing the pendency of the suit per se amounts to false fact. Therefore, ignoring such an admission by the First Appellate Court and setting aside the ex-parte order insofar as defendants are concerned in O.S.No.725/2008 by allowing the miscellaneous appeal filed by the defendants has thus resulted in miscarriage of justice and sought for allowing the revision petition. 10. Per contra, learned counsel for respondent No.2 who is one of the contesting defendants contended that plaintiff managed to get a endorsement of refusal on the RPAD covers which has been acted upon by the Trial Court by placing the defendants ex-parte inasmuch as no summons were issued through the process of Court and the very fact that on the first date itself, the learned Trial - 8 - HC-KAR NC: 2025:KHC:44114 CRP No. 469 of 2019 Judge placing the defendants ex-parte and proceeding with the suit hurriedly and plaintiff executing the ex-parte decree should not come in the way of valuable right of the defendants in contesting the suit of the plaintiff on merits and thus, sought for dismissal of the revision petition. 11. Having heard the arguments of the parties in detail, this Court perused the material on record, meticulously. 12. On such perusal of the material on record, including the Trial Court Records in O.S.No.725/2008, it is crystal clear that the Trial Court did not issue summons to the defendants through the Court. 13. On the first instance itself, issuing the suit summons by RPAD and acting on the endorsement made by the post man, without holding further enquiry with regard to the endorsement ‘refused’ and proceeding with the suit in a hurried manner and executing the ex-parte decree has thus resulted in miscarriage of justice even if - 9 - HC-KAR NC: 2025:KHC:44114 CRP No. 469 of 2019 the admission of one of the defendants in Misc. Petition No.17/2009 as referred to supra is taken into consideration. 14. Said aspect of the matter is taken note of by the First Appellate Court in a proper manner if not in so many words. 15. A party to the proceeding cannot take advantage of the procedural lapses. Defendants having succeeded in getting the ex-parte order set aside, ought to be penalized by imposing reasonable cost of Rs.5,000/- ordered by the First Appellate Court is on the lower side especially on the light of the admission referred to supra. 16. Ends of justice would be met in the facts and circumstances of the case by imposing additional cost of Rs.15,000/- in all Rs.20,000/- by upholding the impugned order. - 10 - HC-KAR NC: 2025:KHC:44114 CRP No. 469 of 2019 17. Accordingly, the following: ORDER i. Revision petition stands disposed of. ii. Further, taking note of the fact that suit for specific performance is of the year 2008 is being reopened by the impugned order, suit shall be expedited and parties shall cooperate with the Trial Court for early disposal of the matter. iii. In that direction, defendants are directed to appear before the Trial Court positively on 22.11.2025 and file written statement if not already filed on or before 22.11.2025 and suit shall be disposed of as early as possible but not later than 31.03.2026. - 11 - HC-KAR NC: 2025:KHC:44114 CRP No. 469 of 2019 iv. Payment of cost is condition precedent for further participation in the matter. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 54