- 1 - HC-KAR CNR: KAHC010165662026 NC: 2026:KHC:36723 RFA No. 499 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO. 499 OF 2026 (PAR/INJ) BETWEEN: 1. SRI. S. PAPESH KAPALI, S/O. LATE SRI. S.P. SHANKARAIAH, AGED ABOUT 48 YEARS, 2. SRI. S. RUPESH KAPALI, S/O. LATE SRI. S.P. SHANKARAIAH, AGED ABOUT 45 YEARS, 3. SRI. S. SHANKAR KAPALI, S/O. LATE SRI. S.P. SHANKARAIAH, AGED ABOUT 43 YEARS, 4. SRI. S. NANDISH KAPALI, S/O. LATE SRI. S.P. SHANKARAIAH, AGED ABOUT 40 YEARS, ALL THE ABOVE APPELLANTS ARE RESIDING AT NO.13, KHATHA NO.38/2, NAGADEVANAHALLI, KENGERI, BANGALORE - 560 060. …APPELLANTS (BY SRI. RAGHAVENDRA B HANJER., ADVOCATE) Digitally signed by THEJAS KUMAR N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR CNR: KAHC010165662026 NC: 2026:KHC:36723 RFA No. 499 of 2026 AND: SMT. SAVITHA KAPALI, AGED ABOUT 41 YEARS, S/O. LATE SRI. S.P. SHANKARAIAH, W/O. SRI. H.J. ANANTHAKUMAR, NO.46, 3RD CROSS, JANATHA COLONY, JNANABHARATHI POST, MARIYAPPANAPALYA, BANGALORE - 560 056. …RESPONDENT (RESPONDENT HELD SUFFICIENT VIDE ORDER DATED 19.06.2026) THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.10.2025 PASSED IN OS.NO.3296/2023 ON THE FILE OF THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR PARTITION AND INJUNCTION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR - 3 - HC-KAR CNR: KAHC010165662026 NC: 2026:KHC:36723 RFA No. 499 of 2026 ORAL JUDGMENT This appeal is filed by the appellants/defendants calling in question the judgment and decree dated 15.10.2025 passed in O.S.No.3296/2023 by the IX Additional City Civil and Sessions Judge at Bangalore (CCH-5)1, whereby, the suit filed for partition was decreed granting 1/5th share to the plaintiff in the suit schedule properties. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. 3. It is the case of the plaintiff that she has filed a suit for the relief of partition and separate possession claiming 1/5th share in the schedule properties by metes and bounds and also for a permanent injunction. It is submitted that suit schedule properties are ancestral and 1 hereinafter referred to as 'the Trial Court', for short - 4 - HC-KAR CNR: KAHC010165662026 NC: 2026:KHC:36723 RFA No. 499 of 2026 joint family properties and both plaintiff and defendants constitute Hindu undivided joint family and they are governed by Hindu Law. 4. Upon service of suit summons, the defendants have appeared and filed written statement. The Trial Court, considering the oral and documentary has decreed the suit by granting 1/5th share to the plaintiff in the suit schedule properties. Thereby, the defendants are constrained to approach this Court by filing this appeal. 5. Learned counsel for the appellants/defendants submitted that the Trial Court, without providing an opportunity to the defendants to cross-examine PW.1 and to lead evidence has proceeded to decree the suit. It is submitted that the Trial Court has not considered the fact that PW.1 was absent on three occasions even though the defendants were ready to cross examine. It is further submitted that when the case was set down for cross- examination of PW.1 on 08.09.2025 and 23.09.2025, the - 5 - HC-KAR CNR: KAHC010165662026 NC: 2026:KHC:36723 RFA No. 499 of 2026 defendants were absent on account of ill-health of their father. Hence, they could not appear on those days and cross-examine PW.1. Taking note of the same, the Trial Court has decreed the suit, the same is illegal. Therefore, learned counsel for the defendants submitted that the matter be remanded to the Trial Court for fresh consideration by giving an opportunity to cross-examine PW.1 and to lead evidence. 6. Despite service of notice, the respondent / plaintiff remained absent. Hence, there is no representation on behalf of the respondent. 7. A perusal of the order sheet of the Trial court produced before this Court would reveal that on 12.02.2025, the plaintiff and her counsel were present and the defendants counsel was absent and the plaintiff was examined herself as PW.1 and got marked Exs.P1 to P12 and the matter was posted to 24.03.2025 for cross examination of PW.1. On 24.03.2025, the plaintiff was absent and the counsel for plaintiff was present and - 6 - HC-KAR CNR: KAHC010165662026 NC: 2026:KHC:36723 RFA No. 499 of 2026 counsel for defendants was present and prays time and at his request, the matter was posted to 23.06.2025 for cross examination of PW.1. On 23.06.2025, PW.1 and counsel for defendants were present in the morning session and the matter was passed over. However, when the case was called again in the afternoon session, PW.1 was absent and the counsel for the defendants was present and the case was posted to 11.07.2025 for cross examination of PW.1, finally. On 11.07.2025, PW.1 was absent and counsel for the plaintiff was present and prays time and at his request, the case was adjourned to 06.08.2025 for cross examination of PW.1 as a last chance. 8. On 06.08.2025, PW.1 was present and counsel for the defendants also present and prays time and the case was posted to 08.09.2025 for cross examination of PW.1 finally. On 08.09.2025, PW.1 and the counsel for plaintiff were present, but there was no representation for the defendants. Hence, the cross examination of PW.1 was taken as nil and the case was adjourned to 23.09.2025 for - 7 - HC-KAR CNR: KAHC010165662026 NC: 2026:KHC:36723 RFA No. 499 of 2026 evidence of the defendants. On 23.09.2025, there was no representation on behalf of the defendants and the Trial Court has taken the defendants' evidence as nil and the matter was posted for arguments on 27.09.2025. 9. It is submitted by the learned counsel for the appellants/defendants that when the matter was set down for defendants' evidence, the defendants could not appear before the Trial Court on account of ill-health of their father. The absence is not an intentional. Therefore, learned counsel for the defendants prays to remand the matter for fresh consideration by providing an opportunity to the defendants to cross-examine PW.1 and to lead evidence. 10. Considering the submissions of the learned counsel for the appellants/defendants and also the fact that appearance of the parties as culled out in the order sheet that PW.1 and counsel for PW.1 were absent for three times when the defendants and their counsel were present and ready to cross examine PW.1, this Court is of - 8 - HC-KAR CNR: KAHC010165662026 NC: 2026:KHC:36723 RFA No. 499 of 2026 the opinion that the defendants shall be given an opportunity to cross examine PW.1 and to lead evidence. Therefore, the matter is to be remanded back to the Trial Court for fresh consideration from the stage of cross examination of PW.1, in accordance with law. Even if the plaintiff wants to lead further evidence, she may be given an opportunity to lead evidence, if she so desires. 11. In the result, the following: ORDER (i) The appeal is allowed. (ii) The judgment and decree dated 15.10.2025 passed in O.S.No.3296/2023 by the IX Additional City Civil and Sessions Judge at Bangalore (CCH-5), is set aside. (iii) The matter is remanded to the Trial Court for fresh consideration. - 9 - HC-KAR CNR: KAHC010165662026 NC: 2026:KHC:36723 RFA No. 499 of 2026 (iv) Liberty is reserved to the defendants to cross examine PW.1 and to lead evidence. (v) The defendants shall appear before the Trial Court on 03.08.2026 and the Trial Court shall issue notice to the plaintiff and pass appropriate orders as per law. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MKM List No.: 1 Sl No.: 38