- 1 - HC-KAR NC: 2025:KHC:45621 MFA No. 4951 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 4951 OF 2021 (CPC) BETWEEN: 1. NARAYANASWAMY @ AMBARISH S/O LATE GURAPPA, AGED ABOUT 43 YEARS, RESIDING AT NO 31/A, KODICHIKKANAHALLI VILLAGE, IIM POST, BTM 2ND STAGE, BENGALURU – 560 076. 2. DODDA VENKATAPPA S/O LATE DODDA BALAPPA, AGED ABOUT 72 YEARS, 3. MANJUNATHA S/O LATE DODDA BALAPPA, AGED ABOUT 35 YEARS, 4. SHASHI KUMAR S/O LATE DODDA BALAPPA, AGED ABOUT 29 YEARS, 5. SMT. MANGAMMA D/O LATE CHIKKA BALAPPA, W/O YELLAPPA, AGED ABOUT 57 YEARS, 6. RAMAPPA S/O YELLAPPA AND LATE MUNIYELLAMMA, AGED ABOUT 57 YEARS, Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:45621 MFA No. 4951 of 2021 7. VENKATESH S/O YELLAPPA AND LATE MUNIYELLAMMA, AGED ABOUT 55 YEARS, 8. SMT. MARIYAMMA D/O YELLAPPA AND LATE MUNIYELLAMMA, AGED ABOUT 57 YEARS, 9. SRINIVAS S/O YELLAPPA AND LATE MUNIYELLAMMA, AGED ABOUT 45 YEARS, 10. YELLAPPA S/O YELLAPPA AND LATE MUNIYELLAMMA, AGED ABOUT 43 YEARS, 11. SMT. MANGAMMA D/O LATE GURAPPA, AGED ABOUT 62 YEARS, 12. SMT. YELAMMA D/O LATE GURAPPA, W/O RAMAPPA, AGED ABOUT 49 YEARS, 13. SMT. KAVERAMMA S/O LATE GURAPPA, AGED ABOUT 43 YEARS, 14. GOPALA S/O LATE GURAPPA, AGED ABOUT 62 YEARS, 15. SATHISHA S/O LATE GURAPPA, AGED ABOUT 34 YEARS, - 3 - HC-KAR NC: 2025:KHC:45621 MFA No. 4951 of 2021 16. SANTHOSH KUMAR S/O LATE GURAPPA, AGED ABOUT 34 YEARS, 17. PAPANNA S/O LATE YELLAPPA, AGED ABOUT 62 YEARS, 18. SMT. KAVERAMMA D/O LATE PAPANNA, AGED ABOUT 30 YEARS, 19. PRAKASHA S/O LATE PAPANNA, AGED ABOUT 28 YEARS, 20. SMT. ROOPA D/O LATE PAPANNA, AGED ABOUT 26 YEARS, 21. MANJUNATHAN S/O LATE PAPANNA, AGED ABOUT 24 YEARS, 22. SUBRAMANI S/O LATE PAPANNA, AGED ABOUT 22 YEARS, 23. SMT. YELLAMMA D/O YELLAPPA, AGED ABOUT 56 YEARS, 24. SMT. MUNIYAMMA D/O YELLAPPA, AGED ABOUT 46 YEARS, 25. HANUMAPPA S/O LATE DODDA BALAPPA, AGED ABOUT 59 YEARS, - 4 - HC-KAR NC: 2025:KHC:45621 MFA No. 4951 of 2021 26. MURALI S/O HANUMAPPA, AGED ABOUT 30 YEARS, 27. GANGADHARA S/O HANUMAPPA, AGED ABOUT 21 YEARS, 28. MUNIYAPPA S/O LATE YELLAPPA, AGED ABOUT 59 YEARS, 29. NAGARAJA S/O MUNIYAPPA, AGED ABOUT 37 YEARS, 30. SRINIVASA S/O MUNIYAPPA, AGED ABOUT 34 YEARS, 31. HARISHA S/O MUNIYAPPA, AGED ABOUT 28 YEARS, 32. SHASHI KUMAR S/O MUNIYAPPA, AGED ABOUT 26 YEARS, 33. ANANDA S/O MUNIYAPPA, AGED ABOUT 24 YEARS, 34. SHANTHA KUMAR S/O MUNIYAPPA, AGED ABOUT 28 YEARS, 35. GUNDAPPA S/O LATE YELLAPPA, AGED ABOUT 37 YEARS, - 5 - HC-KAR NC: 2025:KHC:45621 MFA No. 4951 of 2021 36. SMT. SARITHA S/O GUNDAPPA, AGED ABOUT 31 YEARS, 37. SMT. DEEPA D/O GUNDAPPA, AGED ABOUT 29 YEARS, 38. VIJAY KUMAR D/O GUNDAPPA, AGED ABOUT 27 YEARS, 39. RAGHAVENDRA D/O GUNDAPPA, AGED ABOUT 24 YEARS, 2 TO 39 ARE RESIDING AT KODICHIKKANAHALLI VILLAGE, BEGUR HOBLI, BENGALURU SOUTH TALUK, BENGALURU – 560 076. REP BY GPA HOLDER BEHALF OF APPELLANT 2 TO 39, NARAYANASWAMY AND AMBARISH THE 1ST PETITIONER HEREIN …APPELLANTS (BY SRI. RAJA SUBRAHMANYA BHAT B,ADVOCATE) AND: 1. K RAVINDER REDDY S/O PURUSHOTHAMA REDDY, AGED ABOUT 60 YEARS, NO 477, 13TH CROSS, 3RD FLOOR, WILSON GARDEN, BENGALURU – 560 027. - 6 - HC-KAR NC: 2025:KHC:45621 MFA No. 4951 of 2021 2. M/S ENGINEERING SYNDICATE (INDIA ) LIMITED REPRESENTED BY ITS DIRECTOR, SMT. PRIYAMVADA REDDY. K RESIDING AT NO 477, 13TH CROSS, 3RD FLOOR, WILSON GARDEN, BENGALURU – 560 027 …RESPONDENTS (BY SRI. RADHANANDAN B.S, ADVOCATE) THIS MFA FILED U/O 43 RULE 1(C) OF CPC, AGAINST THE ORDER DATED 26.08.2021 PASSED IN MISC.NO.622/2018 ON THE FILE OF THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE CCH-59, BENGALURU, DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 9 OF CPC IN TIME. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The appeal is filed by the appellants/plaintiffs questioning the order dated 26.08.2021 passed in Misc.No.622/2018 and order to restore O.S.No.905/2016, thereby dismissed the miscellaneous petition filed under Order IX Rule 9 of CPC on 26.08.2021. 2. The appellants herein have filed the suit for permanent injunction against the respondents herein. Appellant No.1 who is plaintiff No.1 is examined as P.W.1 - 7 - HC-KAR NC: 2025:KHC:45621 MFA No. 4951 of 2021 and got marked the documents as Ex.P.1 to Ex.P3. Plaintiff No.1 kept absence from attending the Court due to his ill- health. Therefore, the suit is dismissed for non- prosecution on 20.07.2018, against which, the plaintiffs filed Misc.No.622/2018 under Order IX Rule 9 of CPC, but that was also dismissed. 3. Learned counsel for the appellants submitted that due to his ill-health plaintiff No.1 was absent and not present before the Court. Therefore, the suit is dismissed. 4. On the other hand, learned counsel for the respondents/defendants submitted that there is no material produced to prove that plaintiff No.1 was suffering from ill-health and the trial Court has rightly dismissed the suit, which needs no interference and prays to dismiss the appeal. 5. The reasons given by the trial Court is that P.W.1 in the cross-examination has deposed that the suit is filed in the year 2016, but he does not remember the - 8 - HC-KAR NC: 2025:KHC:45621 MFA No. 4951 of 2021 exact date and month of filing of the suit. Further observed that P.W.1 was not keeping good health and produced the documents i.e., Ex.P.1 to Ex.P.3. It is observed that when the suit is dismissed for non- prosecution on 20.07.2018, but the appellants have not produced the document to show that he was taken to the hospital. Further observed that, if appellant No.1 was suffering from ill-health, he could have examined the doctor by examining him, but that is not done. Therefore, opined that the absence of appellant No.1 from appearing before the trial Court is an intentional one. Hence, not made out good ground to restore the suit, hence, dismissed the miscellaneous petition filed under Order IX Rule 9 of CPC 6. Upon considering the materials available at this stage, the trial Court has adopted too much technical method wanting to produce the document that plaintiff No.1 was suffering from ill-health. Further the trial Court has observed that plaintiff No.1 could have examined the - 9 - HC-KAR NC: 2025:KHC:45621 MFA No. 4951 of 2021 doctor and produced the medical certificate. The trial Court has adopted too much technical method, but in the suit plaintiff No.1 is examined as P.W.1 and produced the documents i.e., Ex.P.1 to Ex.P.3. Therefore, the trial Court ought to have granted one more opportunity in the suit to contest the suit. But without doing so ultimately resulting in dismissal of the suit on technical reasons which curtails the right of the appellant in the suit. The case ought to have been decided on its merits, but not by adopting technical approach. 7. Therefore, the Court is of the opinion to give one more opportunity to the appellant to prosecute the suit, but with cost of Rs.15,000/- payable by the plaintiffs to the defendants since the defendants are one again constrained to face the trial at no fault of them. Therefore, the cost is imposed. 8. Hence, I proceed to pass the following - 10 - HC-KAR NC: 2025:KHC:45621 MFA No. 4951 of 2021 ORDER i. The appeal is allowed. ii. The order dated 26.08.2021 passed in Misc.No.622/2018 by LVIII Addl. City Civil and Sessions Judge (CCH-59) and order dated 20.07.2018 passed in O.S.No.905/2016 are hereby set aside. iii. The matter is remanded to the trial Court with cost of Rs.15,000/- payable by the plaintiffs to the defendants. iv. All contentions are kept open. v. Liberty is adduced to the parties to adduce evidence, both oral and documentary. vi. The parties shall appear before the trial Court on 15.12.2025 without expecting notice from the Court and parties shall co-operate with the Court to expedite the trial. SD/- (HANCHATE SANJEEVKUMAR) JUDGE PB, List No.: 1 Sl No.: 26