- 1 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO. 31400 OF 2025 (GM-CPC) BETWEEN: 1. SRI. M.CHANNA KRISHNAMURTHY S/O LATE H.MUNIKRISHNAPPA AGED ABOUT 68 YEARS 2. SRI. M.SRINIVASAMURTHY S/O LATE H.MUNIKRISHNAPPA AGED ABOUT 63 YEARS BOTH ARE R/AT LINGANAHALLI VILLAGE KASABA HOBLI, DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT - 561 203. …PETITIONERS (BY SRI K.VISHWANATHA, ADVOCATE) AND: 1. SMT. M.ANUSUYA DEVI W/O N.M.NARAYANASWAMY D/O LATE H.MUNIKRISHNAPPA AGED ABOUT 64 YEARS R/AT NELAVAGILU VILLAGE NANDAGUDI HOBLI, HOSKOTE TALUK BENGALURU RURAL DISTRICT - 562 122. 2. SMT. M.MANJULADEVI D/O LATE H.MUNIKRISHNAPPA AGED ABOUT 53 YEARS R/AT LINGANAHALLI VILLAGE Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 KASABA HOBLI, DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT - 561 203. 3. SMT. M.JAMUNA W/O SOMASHEKAR AGED ABOUT 49 YEARS D/O LATE H.MUNIKRISHNAPPA R/AT 431, HORAMAVU AGARA HORAMAVU POST, BENGALURU - 560 043. 4. SRI. M.GOVINDASWAMY S/O LATE H.MUNIKRISHNAPPA AGED ABOUT 65 YEARS R/AT LINGANAHALLI VILLAGE KASABA HOBLI, DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT - 561 203. 5. SRI. RAMANJINAPPA. S/O MUNIKEMPANNA AGED ABOUT 55 YEARS R/AT KONAGATTA VILLAGE KASABA HOBLI, DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 561 203. 6. THE SPECIAL LAND ACQUISITION OFFICER KARNATAKA INDUSTRIAL AREA DEVELOPMENT, BOARD NO. 3, 3RD FLOOR THIMMAIAH TOWERS, 1ST CROSS GANDHINAGARA, BENGALURU - 560 009. 7. MUNITHAYAMMA W/O LATE SHAMANNA AGED ABOUT 72 YEARS 8. SMT. VIJAYALAKSHMI @ VIJAYA W/O DANANJAYA D/O LATE SHAMANNA AGED ABOUT 50 YEARS - 3 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 9. SMT. SHARADHA D/O LATE SHAMANNA AGED ABOUT 48 YEARS 10. SMT. PUSHPA W/O MAHESH @ LAKSHMANA D/O LATE SHAMANNA AGED ABOUT 46 YEARS THE RESPONDENT NO.7 TO 10 ARE R/AT LINGANAHALLI VILLAGE KASABA HOBLI, DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT - 561 203. …RESPONDENTS (BY SRI SANJAY KUMAR S. G., ADVOCATE FOR C/R-9; NOTICE TO R-1 TO 8 AND 10 ARE DISPENSED WITH VIDER ORDER DATED 05/11/2025) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN ORDER OR DIRECTION IN THE NATURE OF CERTIORARI AND QUASH THE ORDER PASSED IN O.S. NO. 130/2008, DATED 21.08.2025, ON IA. NO.26, FILED UNDER ORDER 9 RULE 7 R/W SECTION 151 OF C.P.C. PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC AT DODDABALLAPUR AS PER ANNEXURE-F. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR - 4 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 ORAL ORDER Heard learned counsel for the petitioners and learned counsel for the caveator/respondent No.9. 2. This Court does not find any need or necessity to issue notice along with the I.A. to respondent Nos.1 to 8 and 10. Respondent Nos.1 to 3 are the plaintiffs before the trial Court and respondent Nos.2, 4 to 6 are the co- defendants along with the petitioners/defendant Nos.1 and 3. The sole contesting defendant before this Court is defendant No.8/respondent No.9. 3. The parties to the proceedings shall be referred to as per their status before the trial Court as plaintiffs and defendants. 4. The plaintiffs filed a suit for the relief of partition, separate possession and for other consequential reliefs against the defendants. The partition is sought for allotment of 1/6th share to the plaintiffs and also to the - 5 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 defendants. Defendant No.1 and defendant No.3, the petitioners herein filed an application in I.A.No.XXVI under Order IX Rule 7 read with Section 151 CPC to set aside an ex-parte order passed against them and to permit them to contest the matter by filing written statement. An affidavit is filed along with the said application, which reads as under: AFFIDAVIT I, Channakeshavamurthy S/o Late.H.Munikrishnappa, aged about 70 years, residing at Linganahalli Village, Kasaba Hobil, Doddaballapura Taluk do hereby solemnly affirm and state on oath as follows; 1. I am the 1st defendant and I know the facts and circumstances of the case. I have authorized to swear this affidavit on behalf of myself and on behalf of other defendants No.3. 2. I submit that, the plaintiffs have filed the above suit for the relief set out in the plaint and this Hon'ble court be pleased to issue summons to us in the above case. Due to our personal Inconvenience we are not able to appear before this Hon'ble court on the last date of hearing and also are not able to engage a counsel. Under the circumstances this Hon'ble court be pleased to passed an exparte order against us. We are having good case on merit and it is very much necessary to contest the above matter. Hence this application. If this Hon'ble court has allowed this application no hardship will caused to other side, on the other hand it is not allowed I will be put to irreparable loss and injury. WHEREFORE, I pray that, this Hon'ble court pleased to consider the accompanying application and permit us to file written objections in the above case, in the interest of justice. - 6 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 VERIFICATION What is stated above are true and correct to the best of my knowledge, information and belief. Identified by me Advocate Doddaballapura Deponent 5. The sum and substance of the reasons and cause shown in the affidavit annexed to the application to condone the delay and for non-filing of the written statement is that "Due to our personal Inconvenience we are not able to appear before this Hon'ble Court on the last date of hearing and also are not able to engage a counsel. Under the circumstances the Hon'ble Court be pleased to passed an ex-parte order against us. We are having good case on merit and it is very much necessary to contest the above matter. Hence the application." Further in the affidavit, it is stated that "no hardship would be caused to the other side, if the application were to be allowed." Apart from this statement, reasons and cause, there is no explanation for the delay. - 7 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 6. The said application along with the affidavit came to be considered by the trial Court. The respondents/defendants and other co-defendants filed objections to the application contending that the evidence of the plaintiffs has been recorded, so also, the evidence of DW1 to DW4. The matter is now posted for further evidence of defendant Nos.6 to 9. At this stage, the application is filed by defendant Nos.1 and 3 to set aside the ex parte order and to permit them to file written statement along with counter claim. The defence taken by the other defendants is that plaintiff and defendant Nos.1 and 2 have divided three properties under the registered partition deed on 03.06.2023 i.e., pursuant to filing of the suit for partition, which clearly goes to show that the plaintiff and defendants Nos.1 to 3 are in collusion with each other. The trial Court has considered the application filed by defendant Nos.1 and 3 and has come to a conclusion that defendants No.1 and 3 have appeared through their counsel in the year 2008, but failed to file - 8 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 written statement. The summons are served on them in the year 2008 itself and they were placed ex parte and after the period of 17 years, they have come before the trial Court to file their written statement and to file counter claim seeking to set aside the ex parte order passed against defendant Nos.1 and 2. 7. The trial Court was not satisfied with the reasoning and explanation offered for delay by defendants Nos.1 and 3 in the affidavit, as it is vague, bald and no proper explanation is provided in the affidavit annexed to the application to condone the delay and has rightly rejected the application with costs. It is a fundamental rule of law so also a common sense that if a defendant wants to contest the suit proceedings even though he is placed ex parte, at the earliest point of time, he has to approach the Civil Court seeking to set aside the ex parte decree or order passed against him and permission of the Court to file his written statement or the counter claim or set off, - 9 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 whichever he wants with the knowledge about the ex parte order and the statement not taken on record. 8. The diligent litigant would be permitted to file a written statement even though there is a reasonable amount of delay, but a litigant who does not show any diligence and sleeps over the matter like Kumbakarna as stated in the judgment of the Hon'ble Apex Court in the case of Esha Bhattacharjee vs. Mananging Committee of Raghunathpur Nafar Academy & others, 2013(12) SCC 649 cannot be permitted to file Written Statement. The Hon'ble Apex Court has come down heavily on the conduct of the litigants who approach the Court belatedly without providing any explanation or reasons to condone the delay. The delay can be condoned if there is reasonable cause and what is reasonable has been explained in the judgment of the Hon'ble Apex Court in the case of Esha Bhattacharya stated supra. Therefore, defendant Nos. 1 and 3, despite having knowledge of the suit of the year 2008 and having received summons, filed an application to - 10 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 set aside ex parte order without bothering about the huge delay. They having taken it for granted and slept over the matter for 17 years now approached this Court. 9. Though this suit is filed for the relief of partition, eventually the trial Court has considered the same by awarding shares to the petitioners, since they are the parties to the proceedings as defendant No.1 and 3. At the same time, it is relevant to mention that plaintiffs have not agitated the matter and are not before this Court for the reason that on the submission made by learned counsel for defendant No.8 it appears that the plaintiffs are in collusion with defendant Nos.1 and 3. 10. Therefore, looking at the matter holistically in all angles, the trial Court is justified in rejecting the application by imposing costs. Hence, I do not find any good ground or cogent reason to accept the argument put forth by the learned counsel for the petitioners i.e. defendant Nos.1 and 3 to set aside the order of the trial - 11 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 Court and permit the defendants to contest the matter when they have not showed any diligence or reasonable cause to be permitted to file the written statement and contest the matter. Pursuant to the amendment made by the legislature and the Code of Civil Procedure in the year 2005, the question of this Court permitting defendant Nos.1 and 3 to contest the matter is ruled out as these are the kind of litigants who want to protract and prolong the proceedings and cause burden to the Court which leads to the docket explosion. 11. Defendant Nos.1 and 2 appeared through their counsel in the year 2008, but failed to file their written statement. Thereafter defendant No.3 was duly served in the year 2008 and was placed ex parte. However, if one could have filed written statement, the other person could have adopted the same. - 12 - HC-KAR NC: 2025:KHC:44599 WP No. 31400 of 2025 12. Under the circumstances, I do not find any good ground or merit in the submission of the learned counsel for petitioners. Accordingly, I pass the following: ORDER i. This petition is dismissed. ii. In view of the fact that suit is of the year 2008, the trial Court is directed to dispose of the matter expeditiously. Sd/- (PRADEEP SINGH YERUR) JUDGE DS CT: VN List No.: 1 Sl No.: 5