- 1 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.6832 OF 2022 (CPC-) BETWEEN: 1. SRI. C KRISHNAPPA S/O. SRI CHANNAPPA AGED ABOUT 72 YEARS RESIDING AT NO.741 11TH CROSS, CHANNAKESHAVANAGAR ELECTRONICS CITY BENGALURU - 560 100 (SENIOR CITIZENSHIP NOT CLAIMED) …APPELLANT (BY KUMARI DEEPIKA K., ADV. FOR SMT. RAKSHITHA D J., ADVOCATE) AND: 1. SRI. RAVISHANKAR S/O. SRI NANJE DEVARU AGED ABOUT 49 YEARS, BEHIND GOVERNMENT HOSPITAL CHANNAKESHAVANAGAR 4TH CROSS ELECTRONIC CITY BANGALORE-560100 2. SMT. NARAYANAMMA SINCE DEAD BY HER LRS WHO IS ALREADY ON RECORD AS 2(A) SMT. KAVITHA W/O MANJUNATH AGED ABOUT 38 YEARS R/AT NO.30/83, KRISHNAPPA LAYOUT, CENTRAL JAIL CROSS NAGARATHNAPURA, ELECTRONIC CITY POST Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 BANGALORE-560100 …RESPONDENTS (BY SRI. ANANDA K., ADVOCATE FOR R1; SRI.V.G.RAJENDRA, ADVOCATE FOR R2(A)) THIS MFA IS FILED U/O.43 RULE 1(d) R/W SEC.151 OF CPC, AGAINST THE ORDER DT.22.03.2022 PASSED IN MISC. PETITION NO.186/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, DISMISSING THE PETITION FILED U/O.9 RULE 13 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The appellant being defendant in the suit in O.S.No.723/2007 and petitioner No.1 in Misc.No.186/2019 has filed the appeal challenging the order dated 22.03.2022 passed in Misc.Petition No.186/2019 by the Court of the Prl. Senior Civil Judge, Bengaluru Rural, whereby the petition filed under order IX Rule 13 of CPC is dismissed. 2. The respondent No.1 herein has filed a suit for declaration and permananet injunction by filing suit in O.S. No.723/2007. In the suit, the summons were served on - 3 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 the appellant and respondent No.2 who are the defendants and appeared in the suit and filed written statement by engaging services of advocate. Thereafter, appellant and respondent No.2 being the defendants have not appeared. Therefore, the plaintiff/respondent No.1 has led evidence both oral and documentary and trial Court has proceeded to pass judgment and decree on 05.01.2019. Thereafter, the defendants came to know the judgment passed by the trial Court. Therefore, they have filed the Misc.Petition No.186/2019 by invoking provisions under Order OX Rule 13 of CPC praying for setting aside the exparte judgment and decree and to re-trial and re-hear the matter but the said petition is dismissed. Hence, defendant No.1 is in this appeal. 3. Kum. Deepika, learned counsel appearing for the appellant/defendant No.1 submitted that the defendants were absent before the trial Court in the suit because of inevitable reasons that because of ill-health since they are senior citizens and subsequently defendant - 4 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 No.2 who was the wife of defendant No.1 passed away on 05.02.2022. Therefore, on all these circumstances, the defendants could not appear in the suit after appearing and filing of written statement. Therefore, due to such inevitable circumstances and for compelling reasons, they could not contest the suit and this ought to have been viewed by the trial Court in a magnanimous way but only on technical approach had dismissed the petition. Therefore, prays to allow the appeal and allow the appellant/defendant No.1 to contest the suit on its merits. 4. On the other hand, the learned counsel appearing for respondent No.1/plaintiff submitted that the trial Court is correct in observing that the petition filed under Order IX Rule 13 seeking relief of setting aside the judgment and decree is not maintainable, since the defendants have appeared in the suit and filed written statement. Therefore, justified the order passed by the trial Court. Therefore, prays to dismiss the appeal. - 5 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 5. Having heard the submissions of learned counsels on either side, the following points arises for consideration of this Court: i) Whether, under the facts and circumstances of the case, the order passed by the trial Court in dismissing the petition filed under Order IX Rule 13 of CPC can be construed as an exparte order? ii) Whether, under the facts and circumstances of the case, the order passed by the trial Court requires interference by this Court? 6. It is not disputed fact that the defendants have appeared in the suit and filed written statement. The defendants further could not appear in the suit for the reasons that they are senior citizens and suffering from ill-ness and defendant No.2 passed away on 05.02.2022. This is averred in the petition filed under Order IX Rule 13 of CPC. Therefore, the appeal is to be considered on the following angles: - 6 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 i) Whether, the impugned order is amounting to exparte judgment and decree? ii) Whether, the defendants were prevented with genuine cause from not appearing before the trial Court? 7. Learned counsel appearing for the appellant/ defendant No.1 placed reliance on the following judgments of the Hon'ble Apex Court as well as this Court: i) ILR 1997 KAR 1909 - Ansari Sakeenabi Vs. Maligi Modeensab. ii) (2019) 11 SCC 301 - G. Rathnaraj since dead by his LRs Vs. Muthukumarswamy Permannet Fund Limited and others. iii) C.R.P No.77/2015 - Krishnappa Vs. Menasamma. iv) (1986) 4 SCC 699 - Prakash Chander Manchanda Vs. Janaki Manchanda. v) W.P.(L) No.17138/2017 - R.P. Bros Vs. Fakhruddin Siraj Topiwala. 8. This Court in Ansari Sakeenabi Vs. Maligi Modeensab case stated supra at paragraph No.8 held as under: - 7 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 8. No doubt, the plaintiff's suit was contested by defendant at its earlier stages and till the plaintiff's evidence was recorded, but he failed to appear on the subsequent dates of hearing and remained absent of course for valid reason, when the suit was set down for his evidence. Then the suit was decreed by the Trial Court on the basis of plaintiff's evidence only. It is not the case that defendant remained absent in the suit after any portion of his evidence was recorded in which event alone the Trial Court could have disposed of the suit treating him as present as envisaged by Explanation to Rule 2 of Order 17. C.P.C. Read in the context of this Explanation, sub-clause (b) of Rule 3 of Order 17 C.P.C. makes the legal position clear that when, a party to the suit remains absent without leading any evidence, the Trial Court is enjoined by Rule 2 of Order 17 to proceed to dispose of the suit in one of the modes stipulated in Order 9 C.P.C. As a necessary legal corrolary it follows that any decree passed by the Trial Court disposing of the suit on the basis of plaintiff's evidence only due to non- appearance of contesting defendant at subsequent stages in the suit and on his failure to lead his evidence, is an ex-parte decree against him and not a decree or merits. In view of this emerging legal position the decree in the instant case has to be treated as an ex-parte decree and not as a decree passed on merits. Therefore, the application under - 8 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 Order 9, Rule 13 C.P.C. made by the petitioner before the Trial Court in Mis. Case No. 4/89 seeking to set aside the decree in question was maintainable in law; and the Trial Court as well as the lower appellate Court have clearly erred in taking the contrary view and passing the impugned orders dismissing the said application. As such, the revision is entitled to succeed. 9. Further, the Hon'ble Apex Court in G.Ratna Raj dead by LRs case stated supra at paragraphs 5, 6, 7, 27, 28 held as under: 5. The defendants on being served entered their appearance and filed their written statement. The trial court, on the basis of pleadings, framed the issues. The plaintiff examined himself as PW 1. The defendants cross-examined the plaintiff. Thereafter, the plaintiff closed his case. The case was accordingly posted for recording the defendants' evidence. 6. At that stage of the proceedings, the defendants did not appear in the suit and, therefore, the Court proceeded ex parte against them. The proceedings in the suit then continued as ex parte against the defendants. The plaintiff then got himself re-examined in the proceedings. He, however, could not be re- - 9 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 cross-examined by the defendants because they were already proceeded ex parte in the proceedings. 7. The trial court (Single Judge) by judgment/decree dated 25-2-2003 passed a preliminary decree against the defendants in relation to the suit property. This led to filing of the two applications (IA No. 340 of 2006 and IA No. 341 of 2006) by Defendant 1 before the trial court. So far as IA No. 341 of 2006 is concerned, it was filed under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) for setting aside of the preliminary decree dated 25-2-2003 and so far as IA No. 340 of 2006 is concerned, it was filed for condonation of delay in filing the application under Order 9 Rule 13 of the Code. 27. As mentioned above, the trial court did proceed to hear the suit ex parte by taking recourse to Order 9 Rule 6(a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the trial court passed the preliminary decree. Such decree, in our opinion, was an “ex parte decree” within the meaning of Order 9 Rule 6(a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants. - 10 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 28. In view of the foregoing discussion, we are of the view that the Division Bench was justified in allowing the applications filed by Defendant 1 under Order 9 Rule 13 of the Code and, in consequence, was justified in setting aside the preliminary decree dated 25-2- 2003 passed in OS No. 131 of 1999 treating the said decree as “ex parte decree”. 10. When applying the principle of law laid down as above stated and also considering the constraints faced by the defendants from not appearing in the suit after filing written statement, the appeal needs to be allowed and remanded back to the trial Court for fresh consideration in accordance with law after receiving evidence from both the sides. Though the defendants have appeared and filed written statement, because of the fact that they could not be present in the suit for contesting the case by cross examination of the plaintiff and not leading evidence. Therefore, it amounts to an exparte judgment and decree within the meaning of Order IX Rule 13 of CPC. Therefore, the petition filed by defendant No.1 is maintainable and the trial Court could have considered the petition in a - 11 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 magnanimous way by considering the constraints faced by defendants that they are senior citizens and are facing ill- ness and in the meantime, defendant No.2 who is the wife of defendant No.1 passed away. Therefore, the impugned order is liable to be set-aside. Accordingly, I answer point Nos.1 and 2 are in the affirmative. 11. Hence, I proceed to pass the following: ORDER i) The appeal is allowed. ii) The order dated 22.03.2022 passed in Misc.Petition No.186/2019 by the Court of the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru, is hereby set-aside. iii) The case is remanded to the trial Court for fresh consideration in accordance with law after receiving evidence from both the sides. iv) Both plaintiff and defendants shall co-operate with the trial for early disposal of the suit within a period of one year from the date of receipt of certified copy of this order. - 12 - HC-KAR NC: 2025:KHC:50420 MFA No. 6832 of 2022 v) Plaintiff and defendants shall appear before the trial Court on 05.01.2026 without expecting notice from the trial Court and contest the suit without seeking unnecessary adjournments. SD/- (HANCHATE SANJEEVKUMAR) JUDGE KA List No.: 1 Sl No.: 48