- 1 - HC-KAR NC: 2026:KHC-D:154 RSA No. 100792 of 2014 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 07TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR SECOND APPEAL NO.100792/2014 (PAR) BETWEEN: SHRI TUKARAM PUNDALIK BHAVAKAR, AGE: 58 YEARS, OCC: DRIVER, R/O. TELI GALLI, NANDAGAD, TALUK: KHANAPUR, DIST: BELAGAVI-591120. …APPELLANT (BY SRI H. M. DHARIGOND, ADVOCATE) AND: 1. SHRI PARASHURAM PUNDALIK BHAVAKAR, AGE: 59 YEARS, OCC: COOLIE WORK, R/O. RAYAPUR GALLI, NANDAGAD, TALUK: KHANAPUR, DIST: BELAGAVI-591120. 2. SHRI KALLAPPA PUNDALIK BHAVAKAR, AGE: 56 YEARS, OCC: SERVICE IN TELECOM DEPARTMENT, R/O. CALANGUL, GOA-408108. 3. SHRI NAGESH PUNDALIK BHAVAKAR, AGE: 54 YEARS, OCC: MECHANIC, R/O. TELI GALLI, NANDAGAD, TALUK: KHANAPUR, DIST: BELAGAVI-591120. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2026:KHC-D:154 RSA No. 100792 of 2014 4. SHRI NARAYAN PUNDALIK BHAVAKAR, AGE: 52 YEARS, OCC: MILITARY SERVICE, (RETD), R/O. NOW RESIDING AT YALLUR ROAD, VADAGAON, BELGAVI-591121. SMT. LAXMI KINAYEKAR, SINCE DECEASED BY HER LRS. 5. SHRI NARAYAN SUBRAO KINAYEKAR, AGE: 30 YEARS, OCC: AGRICULTURE, R/O. HATTARGUNJ, TALUK: KHANAPUR, DIST: BELAGAVI-591120. …RESPONDENTS (BY SRI G. B. NAIK AND SMT P. G. NAIK, ADVOCATES FOR R1 TO R5.) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 18.10.2014 PASSED IN RA NO.180/2012 ON THE FILE OF THE COURT OF THE PRESIDING OFFICER FAST TRACK COURT I AND ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELGAUM, ITINERATION AT KHANAPUR AND THE JUDGMENT AND DECREE DATED 29.09.2007 PASSED IN O.S.NO.282/2000, ON THE FILE OF THE PRINCIPAL CIVIL JUDGE SR. DIVISION BELGAUM, AT BELGAUM, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC-D:154 RSA No. 100792 of 2014 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This Regular Second Appeal is filed by defendant No.2/appellant challenging the judgment and decree dated 18.10.2014 passed in R.A.No.180/2012 on the file of I Additional District and Sessions Judge, Belgaum, Itineration at Khanapur1, as well as the judgment and decree dated 29.09.2007 passed in O.S.No.282/2000 on the file of Principal Civil Judge (Sr.Dn), Belgaum2. 2. Being aggrieved by the same, defendant No.2 has preferred the present regular second appeal. 3. For the purpose of convenience, ranking of the parties is referred to as per their status before the Trial Court. 4. The plaintiff had filed a suit for partition and separate possession of the suit schedule properties. In the said suit, defendant No.2 was served with notice; however, 1 Hereinafter referred to as ‘First Appellate Court’ 2 Hereinafter referred to as ‘Trial Court’ - 4 - HC-KAR NC: 2026:KHC-D:154 RSA No. 100792 of 2014 despite service of notice, he remained absent. Consequently, the Trial Court placed him ex-parte and passed an ex-parte order on 29.09.2007. Subsequently, defendant No.2 came to know about the ex-parte order passed by the Trial Court and filed Civil Miscellaneous Petition No.20/2008 on 06.09.2008 under Order IX Rule 13 of the Code of Civil Procedure3, seeking to set aside the ex- parte judgment and decree passed in O.S. No.282/2000. The said petition was dismissed by the Trial Court, after four years from the date of its institution i.e., 01.06.2012. After dismissal of the Civil Miscellaneous Petition, defendant No.2 preferred R.A. No.180/2012 before the First Appellate Court. There was a delay of five years in filing the first appeal. However, the First Appellate Court dismissed the appeal without condoning the delay. 5. The appellant was prosecuting civil miscellaneous petition under order IX rule 13 of CPC. Therefore, there could not be delay in preferring the appeal. The case must 3 Hereinafter referred to as ‘CPC” - 5 - HC-KAR NC: 2026:KHC-D:154 RSA No. 100792 of 2014 be heard on merits but the appellant was placed ex-parte before the Trial Court. Hence an opportunity is to be given to defendant No.2 for further proceedings as per the law. Therefore, the orders passed by both the Courts need to be set aside and remand back the case to the trial Court for fresh consideration to pass order on its merits, in accordance with law. 6. In the result, I proceed to pass the following: ORDER i. The regular second appeal is allowed. ii. The judgment and decree dated 18.10.2014 passed in R.A.No.180/2012 on the file of I Additional District and Sessions Judge, Belgaum, Itineration at Khanapur as well as the judgment and decree dated 29.09.2007 passed in O.S.No.282/2000 on the file of Principal Civil Judge (Sr.Dn), Belgaum, are hereby set aside. iii. The matter is remanded to the Trial Court for fresh consideration in accordance with law. - 6 - HC-KAR NC: 2026:KHC-D:154 RSA No. 100792 of 2014 iv. Both the parties are directed to appear before the Trial Court on 02.02.2026 without expecting any notice from the Trial Court. v. The Trial Court is directed to dispose of the suit within a period of one year from the date of appearance of the parties. vi. All contentions are kept open. vii. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE ASN /CT-AN List No.: 1 Sl No.: 38