- 1 - HC-KAR NC: 2025:KHC:45292 MFA No. 7004 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.7004 OF 2024 (CPC) BETWEEN: SRI. R. RAJKUMAR S/O LATE R. RAMAKRISHNACHARI AGED ABOUT 62 YEARS, R/AT NO.8,, 3RD FLOOR, APPURAYAPPA ‘A’ LANE WARD NO. 47,NAGRATHERPET BENGALURU – 560 002 …APPELLANT (BY SRI. RAJKUMAR. R, PARTY IN PERSON) AND: SRI. R. NITISH S/O SRI R. RAJKUMAR AGED ABOUT 26 YEARS R/AT NO.2363, SHARADA, MCC ‘B’ BLOCK, WEST, BEHIND OLD RTO OFFICE, DAVANGERE. …RESPONDENT (BY SRI. CHANDRASEKHARA T. A, ADVOCATE) THIS MFA FILED UNDER ORDER 43 RULE 1(d) OF CPC, AGAINST THE ORDER DATED 01.10.2024 PASSED IN MISC. PETITION NO.23/2017 ON THE FILE OF THE XVIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY,DISMISSING THE PETITION FILED UNDER ORDER IX RULE 13 OF CPC. THIS APPEAL, COMING ON FOR FURTHER ARGUEMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by PAVITHRA B Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:45292 MFA No. 7004 of 2024 CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The appeal is filed by the petitioner in Misc. Petition No.23/2017, who is the defendant in suit O.S.No.4970/2004 challenging the order dated 01.10.2024 passed by the Court of XVIII Additional City Civil Judge at Bangalore City in Misc. Petition No.23/2017, thereby, the petition filed under Order IX Rule 13 CPC is dismissed. 2. It is the case in brief that the respondent herein is plaintiff in O.S.No.4970/2004 and the petitioner is defendant in the said suit and the said suit is filed for partition and separate possession and in the said suit the trial court by placing the appellant/petitioner as exparte, proceeded to pass the decree of partition and separate possession on 26.09.2005. The judgment and decree passed in O.S.No.4970/2004 is an exparte decree. 3. The appellant/party-in-person submitted that he has not received summons in the suit and did not know - 3 - HC-KAR NC: 2025:KHC:45292 MFA No. 7004 of 2024 the civil proceedings and he came to know the judgment and decree passed in the suit only when notice in the FDP proceedings were issued and thereafter filed the petition under Order IX Rule 13 CPC praying to set aside the exparte judgment and decree passed in O.S.No.4970/2004, but same is dismissed. Therefore, the defendant in the suit and the petitioner in Misc. Petition No.23/2017 is in this appeal questioning the order passed in the miscellaneous petition. 4. On the other hand, learned counsel for the respondent submitted that the appellant who is defendant in the suit has not claimed the suit summons and it is recorded on 23.03.2005 in the suit that summons issued to defendant is returned with postal shara as "not claimed". Therefore, the appellant, who is defendant in the suit has knowledge of suit proceedings but deliberately has not appeared and as such, the Court proceeded with the suit and passed the decree. It is submitted that appellant/party-in-person way back in the year 2020 knew - 4 - HC-KAR NC: 2025:KHC:45292 MFA No. 7004 of 2024 the exparte judgment and decree passed, but the appellant/party-in-person did not appear, therefore the appeal by the appellant/party-in-person is not bonafide one. Therefore, there is no error found in the order passed by the trial court and thus prays to dismiss the appeal. 5. Upon hearing both the parties, the following points would arise for consideration: (i) Whether the appellant/party-in-person makes out sufficient grounds for setting aside the exparte judgment and decree dated 01.10.2024 passed in O.S.No.4970/2004? 6. The respondent herein has filed the suit in O.S.No.4970/2004 for partition and separate possession by stating that the suit schedule properties are ancestral and joint family properties. The trial court has noted down that though summons was issued to the defendant, the defendant did not claim the summons and therefore held - 5 - HC-KAR NC: 2025:KHC:45292 MFA No. 7004 of 2024 the service to defendant as sufficient. Hence, by placing him exparte judgment and decree is delivered. 7. Subsequently, knowing the fact that the exparte judgment and decree is passed, the appellant who is defendant in the suit has filed a petition under Order IX Rule 13 of CPC praying to set aside the exparte judgment and decree passed in the suit. The trial court dismissed the miscellaneous petition on the reason that the defendant knew the suit proceedings, but deliberately he did not appear in the suit. Therefore, on the reason that there is lack of bonafideness on the part of the defendant, dismissed the miscellaneous petition. 8. The appellant/party-in-person had submitted that suit for partition is not maintainable as the suit properties belong to his father as his father purchased the same. Therefore, the suit properties are self acquired properties of father of appellant. Therefore the plaintiff cannot maintain the suit for partition. Whatever may be - 6 - HC-KAR NC: 2025:KHC:45292 MFA No. 7004 of 2024 the merits in the suit, this Court at this stage is refrained to observe the merits involved in the suit. But considering the fact that though in the suit the defendant has not claimed the suit summons as per observation made in the order sheet of the trial court, but the Court is of the opinion to given one chance to the appellant, who is defendant in the suit to contest the suit on its merits. Therefore, the Court is of the opinion to set aside the order passed in the miscellaneous petition and remand the matter to the trial court for fresh consideration to deal with the case in accordance with law. Accordingly, I answer Point No.(i) in the affirmative. 9. Hence, I proceed to pass the following: ORDER (1) The appeal is allowed. (2) The order dated 01.10.2024 passed by the Court of XVIII Additional City Civil Judge at Bangalore City in Misc. Petition No.23/2017 is set aside. - 7 - HC-KAR NC: 2025:KHC:45292 MFA No. 7004 of 2024 (3) Consequently, the exparte judgment and decree dated 26.09.2005 passed in O.S.No.4970/2004 is set aside. (4) The suit in O.S.No.4970/2004 is remanded to the trial court for fresh consideration in accordance with law. (5) All contentions of both parties are left open. (6) Both the parties shall appear before the trial court on 03.12.2025 without expecting notice from the trial court. (7) Both parties are at liberty to lead additional evidence, if so advised. (8) The trial court shall expedite the matter and pass the judgment in accordance with law. (9) The copy of this judgment shall be forwarded to the trial court. SD/- (HANCHATE SANJEEVKUMAR) JUDGE DR List No.: 1 Sl No.: 26