- 1 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.8030 OF 2022 (CPC) BETWEEN: SRI. K.V.RAVI SINCE DIED BY LRS', a) SANGEETHA W/O LATE K.V RAVI, AGED ABOUT 47 YEARS b) SUSHMA K R. D/O LATE K V RAVI, AGED ABOUT 28 YEARS, c) LALITHA K R, D/O LATE K V RAVI, AGED ABOUT 26 YEARS, d) GOWTHAM K R S/O LATE K V RAVI, AGED ABOUT 23 YEARS, ALL ARE R/AT NO.19, 4TH MAIN, RAMAMOHAN PURAM, BANGALORE - 560 021 …APPELLANTS (BY SRI. RAMESHCHANDRA, ADVOCATE) AND: 1. SMT. K.V.SUBBA LAKSHMI D/O LATE VENKATESH SHASTRY W/O G.V.RAMESH AGED 56 YEARS, Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 R/AT NO.3666, 2ND FLOOR, 5TH CROSS, SUBRAMANYA NAGAR, BENGALURU - 560 021. 2. SMT.K.V.GOWRI D/O LATE VENKATESH SHASTRY, AGED 50 YEARS, 3. SMT.K.V.INDIRA D/O LATE VENKATESH SHASTRY W/O RAVISHANKAR P AGED 45 YEARS, RESPONDENTS NO.2 &3 ARE R/AT NO.19/1, 1ST FLOOR, 4TH MAIN, RAMAMOHAN PURAM, BANGALORE - 560 021. 4. K.V.LAKSHMI NARAYANA S/O LATE VENKATESH SHASTRY K AGED 52 YEARS, R/AT NO.19, 4TH MAIN, RAMAMOHAN PURAM, BANGALORE - 560 021. …RESPONDENTS (BY SMT. VASANTHALAKSHMI.H.N, ADVOCATE FOR R1 TO R3; SRI. PAVAN KUMAR.A, ADVOCATE FOR R4) THIS MFA IS FILED U/O 43 RULE 1(d) OF CPC, AGAINST THE ORDER DATED 23.08.2022 PASSED IN MISC.NO.88/2021 ON THE FILE OF THE LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, CCH-66, DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT This appeal is filed by the defendant No.1 in the suit O.S.No.6142/2916 and petitioner in Miscellaneous No.88/2021 questioning the order dated 23.08.2022 passed by the Court of LXV Addl. City Civil & Sessions Judge, Bengaluru City, in the Miscellaneous No.88/2021, thereby, Miscellaneous No.88/2021 filed under Order IX Rule 13 of CPC is dismissed. 2. Rank of the parties are referred to as per their rankings before the trial court. 3. The plaintiffs have filed the suit for partition and separate possession by metes and bounds of claiming 1/5th share each by contending that suit schedule properties are joint family properties as they have been purchased by the plaintiffs and defendants’ father namely, Sri.K.Venkatesh Shastry. Sri.Venkatesh Shastry has three daughters and two sons. The defendant Nos.1 and 2 are - 4 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 sons. Therefore, by pleading so that the plaintiffs and defendants are children of Venkatesh Shastry and the suit schedule properties are joint family properties, prayed for decreeing the suit for partition. 4. After issuing summons in the suit by the trial court, the defendant Nos.1 and 2 (appellant herein and respondent No.1) have engaged the services of a common advocate and also filed written statement, but thereafter the defendants have not contested the suit. According to the trial court sufficient opportunities were given to the defendants to contest the suit for cross examining the plaintiff/PW1 and also to lead defendants’ evidence, but they did not do so. Therefore, the trial court based on the pleadings in the plaint, written statement and the evidence of PW1 proceeded to pass the decree by granting 1/5th share each in the suit schedule properties. 5. The defendant No.1 by contending that after receiving notice from the trial court that such judgment - 5 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 and decree is passed in the suit and by contending that the said judgment and decree in the suit is amounting to an exparte decree, hence filed Miscellaneous No.88/2021 under Order 9 Rule 13 of CPC. The trial court has dismissed the said miscellaneous petition and being aggrieved by it, the defendant No.4 has preferred the present appeal. 6. Learned counsel for the appellant vehemently submitted that the judgment and decree passed by the trial court in suit is amounting to an exparte judgment and decree as the defendants have only filed the written statement but did not contest the suit by participating in further proceedings, therefore the judgment and decree is amounting to exparte judgment and decree. Hence, amenable for invoking the provisions of under Order IX Rule 13 of CPC by setting aside such exparte decree, but it is erroneously dismissed by the trial court. - 6 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 7. Further submitted that justice could be rendered on the substantial cause rather than technicalities. Therefore, the defendants have not been provided with sufficient opportunities to contest the suit by cross examining the plaintiffs and also by leading the defendants’ evidence. Therefore, the judgment and decree passed by the trial court is an exparte judgment and decree. Hence, the trial court ought to have entertained the petition under Order XI Rule 13 CPC but erroneously dismissed the suit. Hence, prays to allow the appeal by giving one more opportunity to the appellant (defendant No.1) to contest the suit. 8. Learned counsel appearing for the appellant/defendant No.1 in support of his arguments, places reliance on the following judgments: (i) Civil Revision Petition No.115/1994 – SMT. ANSARI SAKEENABI vs. MALIGI MOIDEENSAB AND OTHERS (ii) Civil Appeal No.5875/2005 – BHAGMAL AND ORS. vs. KUNWAR LAL AND ORS. - 7 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 (iii) Civil Revision Petition No.363/2015 – BASAVARAJ vs. CHANDRAIAH (iv) 2019 (7) Kar. L.J. 436 – NAGIREDDY vs. M.NAGARAJ AND ANOTHER (v) (2019) 7 SCC 359 – ROBIN THAPA vs. ROHIT DORA (vi) AIR 1997 KARNATAKA 339 - SMT.ANSARI SAKEENABI Vs. MALIGI MOIDEENSAB AND OTHERS (vii) 2010 AIR SCW 4799 - BHAGMAL AND ORS Vs. KUNWAR LAL AND ORTHERS (viii) 2016 0 SUPREME (KAR) 701; 2017 1 KAR LJ 508; 2017 2 KCCR 1457 - BASAVARAJ VS. CHANDRAIAH (ix) 2019 (7) KAR.L.J.436 - NAGIREDDY VS. M.NAGARAJ AND ANOTHER (x) (2019) 7 SCC 359 - ROBIN THAPA VS. ROHIT DORA 9. On the other hand, learned counsel for the respondents/plaintiffs submitted that the judgment and decree passed is not an exparte decree but it is considered on its merits. Defendant Nos.1 and 2 have engaged the services of a common Advocate and later on, the appellant herein (defendant No.1) has withdrawn the vakalath from - 8 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 common advocate and engaged the services of another Advocate independently and also the appellant (defendant No.1) has filed written statement. Therefore appellant (defendant No.1) has filed written statement therefore the appellant (defendant No.1) knew very well about the suit proceedings, but for the best reasons known to him but did not participate in the further proceedings. Therefore, this is not an exparte judgment and decree, but it is the decree after considering the evidence on record. Hence, the judgment and decree is passed on merits based on the oral and documentary evidence. 10. Further submitted that even if the matter is remanded to the trial court, then the same would be the result as passed in the judgment and decree since the relationship between the parties and nature of properties that it exists as on today, are not in dispute. Further submitted that just because the father has solemnised the marriage of daughters by giving some amount, that does not take away the right of daughters being coparcenership - 9 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 of claiming share in the ancestral and joint family properties. Therefore, even if the suit is once again considered on merits after giving one more opportunity to the defendants the result would be same as that of already passed in the suit. 11. Further submitted that the appellant has suppressed some material facts in the miscellaneous petition as well as in the appeal. Therefore, on such suppression of facts the defendants are not entitled to relief in this appeal, also even if the judgment and decree passed by the trial court already in the suit, by which the defendant No.4 is entitled for 1/5th share. Therefore, there would be not any substantial change in the judgment and decree, even after reconsidering the same. Therefore, remanding the case once again to the trial court would become an ordeal to the plaintiffs of claiming their share. Therefore, prays to dismiss the appeal. - 10 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 12. In support of their arguments, learned counsel for the respondents/plaintiffs places reliance on the following judgments: (i) 2007 AIR SCW 5350 – M/S. PRESTIGE LIGHTS LTD. vs STATE BANK OF INDIA (ii) Civil Appeal Nos.7550-7553/2021 – SHRI K. JAYARAM & ORS. vs BANGALORE DEVELOPMENT AUTHORITY & ORS. (iii) 2010 AIR SCW 50 – DALIP SINGH vs STATE OF U.P. AND OTHERS (iv) 2010(2) SCC 114 (CIVIL APPEAL NO. 5239 OF 2002) - DALIP SINGH VS. STATE OF U.P & ORS (v) CIVIL APPEAL NOS.7550-7533 OF 2021 - SHRI. K. JAYARAM VS. BANGALORE DEVELOPMENT AUTHORITY (vi) 2007 AIR SCW 5350 – APPEAL (CIVIL) No.3827 OF 2007 - M/S PRESTIGE LIGHTS LTD VS. STATE BANK OF INDIA 13. Upon hearing the arguments from both sides, the following points arise for consideration: i. Whether, under the facts and circumstances involved in the case, defendant No.1/appellant/petitioner in Misc.No.88/2021 - 11 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 proves that the judgment and decree passed in O.S.No.6142/2016 is an exparte judgment and decree amenable for recalling the same and warranting to remand the matter to the trial Court? ii. Whether, under the facts and circumstances involved in the case, the order passed in Misc.No.88/2021 requires interference of this Court? 14. The appellant is defendant No.1 in OS.No.6142/2016. Respondent Nos.1 to 3 herein are the plaintiffs in the said suit filed for partition and separate possession by metes and bounds. Upon issuance of summons by the trial Court, defendant Nos.1 and 2 have appeared by engaging the services of an Advocate and also filed the written statement. The trial Court after framing issues, posted the matter for evidence. Plaintiff No.3 was examined as P.W.1, then the matter was posted for cross-examination of P.W.1, but the defendants have not cross examined P.W.1. Therefore, the cross- examination of defendants is taken as NIL by observing - 12 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 that sufficient opportunities were given to the defendants, but did not cross-examine P.W.1. At this stage, defendant No.1 has filed the application for recalling the order taking the cross-examination of P.W.1 as NIL. The trial Court in order to give one more opportunity to the defendants has recalled the order and posted the matter for cross- examination of P.W.1. At this juncture, defendant No.1 has withdrawn the vakalath, which was given as a common vakalath to the Advocate and P.W.1 was ordered to be cross-examined by the appellant/defendant No.1 with cost of Rs.500/-. Therefore, defendant No.1 has also actively participated in the suit proceedings. 15. At this juncture, learned counsel for the appellants submitted that since defendant No.1 has not cross-examined P.W.1, therefore amounting to passing an order of exparte judgment and decree in the suit. Therefore, places reliance on the judgment of this Court in the case of Smt. Ansari Sakeenabi (stated supra), wherein at paragraph No.8 it is observed as under: - 13 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 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 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.” 16. Further he places reliance on the judgment of the Hon’ble Supreme Court in the case of Bhagmal - 14 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 (stated supra), wherein at paragraph No.2 it is observed as under: “2. According to the appellant-defendants, this application was moved within 30 days from the date of their knowledge of the ex parte decree. The appellant-defendants had pointed out that there was a compromise effected on 10-12-1983, which was an out-of-court settlement, wherein it was agreed between the parties that Respondent 1-plaintiff would withdraw the suit on account of the understanding having been arrived at between the parties. The appellant-defendants further pleaded that since it was the understanding between the parties that Respondent 1-plaintiff would withdraw the suit or get it dismissed, they did not attend the further proceedings, which Respondent 1-plaintiff continued surreptitiously and hence they did not even know about the ex parte order and the decree passed against them. It was the stand of the appellant-defendants that since the application had been moved within 30 days from the knowledge, a separate application for condonation of delay was not required. The application under Order 9 Rule 13 was dismissed by the trial court, which held the said application to be barred by time. A miscellaneous civil appeal came to be filed in the Court of District Judge, Bhopal against that order. There was some delay in filing the said appeal and, therefore, the application under Section 5 of the Limitation Act for condonation of delay was also filed. The appellate court held that the application filed by the appellant-defendants under Order 9 Rule 13 deserved to be allowed and held that the trial court had erred in law in not allowing the application. The appeal came to be allowed and the appellate court directed the trial court to decide the case on merits after hearing the parties.” - 15 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 17. The facts in SMT. ANSARI SAKEENABI’s case is that initially the defendant has contested the suit but later he died. Therefore, there was no opportunity for the defendant to contest the suit. Hence, the trial court proceeded and passed exparte judgment and decree. After death of defendant his wife entered into record and made an application for recalling the exparte judgment and decree by filing the application under Order IX Rule 13 CPC, but the same is dismissed by the trial court holding that it is not exparte judgment and decree. But this order is reversed. The facts and circumstances in the cited case are different. Originally the defendant though has appeared in the suit, but later he died due to cancer. This was not brought to the knowledge of the trial court, hence proceeded to pass an exparte judgment and decree. Thereafter his wife entered in the suit and requested to contest the suit therefore under these circumstances this Court has given an opportunity to contest the suit on behalf of the wife of defendant. Under these - 16 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 circumstances, it was held that the judgment and decree passed therein is exparte judgment and decree, but in the present case the facts are different. 18. Further the facts in BHAGAMAL’s case that a suit was filed by the respondents against the father of plaintiff No.1, who died during the pendency of suit and his legal heirs were brought on record. The suit was decreed exparte and the appellants came to know that said exparte judgment and decree was passed in execution proceedings. Therefore, under these facts and circumstances it was held that it was an exparte decree as per the decree and entertained the application filed under Order IX Rule 14 of CPC. 19. But considering the facts involved in the case he is having difference that the defendants have appeared in the suit and engaged a common Advocate and filed written statement. Here it is not the case of defendants that either of the defendants died. The defendants - 17 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 appeared and filed the written statement therefore it proves that defendants knew the suit proceedings very well. The defendants have not cross examined PW1 at initial stage. Subsequently, the defendant No.1 has filed application for recalling PW1 for cross examination and it was allowed by the trial court with cost on the defendants. Then the defendant No.1 (appellant herein) withdrew the common Vakalath, executed power of attorney and engaged another Advocate, but the defendant No.1 has also not cross examined PW1 even though second opportunity was given. Therefore, all these cumulative facts and eventualities prove the fact that the defendants knew very well the suit proceedings and participated in the suit proceedings, but did not contest the suit and inevitably the trial court proceeded further and passed the decree. Under these circumstances, the decree passed by the trial court cannot be found as an exparte decree. Therefore, due to these factual differences in the above said decisions and present case, the said two decisions are - 18 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 not applicable to the present case. In the said two decisions the defendants died therefore there is no question of participation in the suit proceedings. As such the trial court did not know that defendants died and proceeded to pass that exparte decree, but in the present case it is not the case so. The defendants have engaged the services of an Advocate, filed the written statement and subsequently, the defendant No.1 has filed above application against PW1 and engaged the services of another Advocate, but failed to cross examine PW1. Therefore, all these eventualities in the case prove the fact that the decree passed is not an exparte decree. Therefore the trial court is correct in decreeing the suit and dismissing the miscellaneous petition filed under Order IX Rule 13 CPC. 20. The defendant No.1 has not stated that he has engaged the services of another Advocate by withdrawing the common Vakalath filed by engaging an Advocate at the first instance. Therefore, this is also amounting to - 19 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 suppression of facts before the Court, which disentitles the defendant No.1 seeking for allowing the miscellaneous petition. The defendants were sent summons and they have engaged the common Advocate. 21. Even on considering the merits involved in this case, there is no injustice to the appellant/defendant No.1. The suit is filed for partition simplicitor. The relationship between the parties in the suit and the suit properties are joint family properties, are not in dispute. One Venkatesh Shastri is original propositus and the plaintiffs are daughters and defendants are sons. Therefore, totally there are 5 children to claim share in the suit schedule properties. Therefore, each plaintiff and defendants are entitled to 1/5th share in the suit schedule properties i.e., what is decreed by the trial court. Therefore, even on considering the case on merits there is no prejudice affecting the right of appellant/defendant No.1. Even if the case is remanded to trial court for afresh consideration and an opportunity is given to the appellant/defendant - 20 - HC-KAR NC: 2025:KHC:32005 MFA No. 8030 of 2022 No.1, he would get the same share of 1/5th extent in the suit schedule properties. Therefore, in the decree passed by the trial court the appellant/defendant No.1 is also entitled to 1/5th share in the suit schedule properties therefore remanding the case once again to the trial court is nothing but be an exercise in futility that consumes time and causing harassment to the plaintiffs, who are daughters of Venkatesh Shastry. Therefore, on all these counts the appeal filed by the appellant deserves to be dismissed. Accordingly, Point No.(i) and (ii) are answered in negative. 22. For the reasons above stated, I proceed to pass the following: ORDER (i) The appeal is dismissed. SD/- (HANCHATE SANJEEVKUMAR) JUDGE PB,DR List No.: 1 Sl No.: 75