Karnataka High Court
Smt. Mahadevamma vs Smt. Bhagya on 15 March, 2018
Equivalent citations: 2018 (2) AKR 785, (2018) 4 KCCR 3524
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1
RFA No.827/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Dated this the 15th day of March, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
Regular First Appeal No.827/2015 (PAR)
BETWEEN:
1. SMT MAHADEVAMMA
W/O LATE CHIKKAMADEGOWDA
AGED ABOUT 62 YEARS
R/O NO.14/2, GROUND FLOOR
2ND MAIN ROAD, BHUVANESHWARI NAGAR
WARD NO.32, KEMPAPURA
AGRAHARA, BANGALORE-40
2. SMT MADAMMA
W/O KARAGEGOWDA
AGED 44 YEARS
R/O NO.14/2, 2ND FLOOR
2ND MAIN ROAD, BHUVANESHWARI NAGAR
WARD NO.32, KEMPAPURA
AGRAHARA, BANGALORE-40
3. SMT CHINNATHAYI
W/O SIDDAIAH
AGED ABOUT 42 YEARS
R/O NO.14/2, 1ST FLOOR
2ND MAIN ROAD, BHUVANESHWARI NAGAR
WARD NO.32, KEMPAPURA
AGRAHARA, BANGALORE-560 040
4. SRI SOMANNA
S/O LATE CHIKKAMADEGOWDA
AGED ABOUT 40 YEARS
R/O NO.14/2, GROUND FLOOR
2ND MAIN ROAD, BHUVANESHWARI NAGAR
WARD NO.32, KEMPAPURA
AGRAHARA, BANGALORE-560 040
2
RFA No.827/2015
5. SRI SIDDARAJU
S/O LATE MADEGOWDA
AGED ABOUT 36 YEARS
PRESENTLY R/AT NO.113, 5TH MAIN ROAD
DURGAPARAMESHWARI NAGAR
KEREPALYA, HOSKERE
BANGALORE-560 085 ...APPELLANTS
(BY SHRI SOMASHEKAR ANGADI, ADVOCATE)
AND:
SMT BHAGYA
W/O MANJUNATHA
AGED ABOUT 38 YEARS
R/O NO.13/7-2, 14TH 'A' CROSS
6TH BLOCK, RAJAJINAGAR
BANGALORE-560 010 ...RESPONDENT
(BY SHRI G.V.NARASIMHAMURTHY, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 8.11.2013 PASSED IN
O.S.NO.1252/2013 ON THE FILE OF V ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE, DECREEING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
THIS RFA COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal by the defendants is directed against the Judgment and Order dated 8.11.2013 passed in O.S.No.1252/2013 on the file of V Additional City Civil Judge, Bangalore.
3RFA No.827/2015
2. Heard Shri Somashekar Angadi, learned counsel for appellants and Shri G.V. Narasimhamurthy, learned Counsel for respondent.
3. For the sake of convenience, the parties shall be referred to as per their status before the Trial Court.
4. Shri Angadi, learned Counsel for the appellants contended that the Judgment and Decree was passed ex- parte against the defendants. He further submitted that, the notices were ordered on the defendants on 13.2.2013 returnable on 2.4.2013.
5. Adverting to the order sheet maintained by the Trial Court, he pointed out that, the office note recorded on 2.4.2013 shows that, the notices were reportedly returned but served by affixure on the door without any judicial order having been passed in that regard. The said office note was accepted by the learned Trial Judge and the defendants were placed ex-parte.
4RFA No.827/2015
6. Shri Angadi, adverting to Order V Rule 20 of CPC, further submitted that, the summons by way of affixure would be ordered only when the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service. In the instant case, no such contingency had arisen. Accordingly, he prays for allowing this appeal.
7. Shri G.V.Narasimhamurthy, learned Counsel for the respondent argued in support of impugned Judgment and Order.
8. The short question that arises for consideration of this Court is:
"Whether the defendants were properly served?"
9. Perusal of the original order sheet reveals that, the notices were returnable on 2.4.2013. The office note dated 13.2.2013 and 2.4.2013, reads as follows:- 5 RFA No.827/2015
"13-02-2013 Heard. Issue suit Summons and Emergent Notice on IA No.I to the defendants returnable by 2/4/2013.
Sd/-13/2
D1 to D5 SS, notice Put up Sd/-
2-4-2013 Pft - SN All the defendants called out.
Absent. Suit summons is refused by Notice issued- returned defendants and summons were (sic) affixed. It is sufficient. All the D1- Refused (sic) affixture defendants are placed ex-parte on (sic) the Door posted for evidence of plaintiff D2:- _______"_______ by 5/7/2013. D3:- _______"_______ D4:- _______"_______ D5:- _______"_______ Sd/-
2/4/13"
Once, the notices were returned, it was incumbent upon the Registry to note the factual position. It is not understandable as to how the affixure on the door is also recorded in the order sheet without a judicial order. The defendants have been placed ex-parte on the strength of office note dated 2.4.2013 and the learned Trial Judge has proceeded further. 6 RFA No.827/2015
10. Order V Rule 20 of CPC, reads as follows:-
"20. Substituted service.-(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.
(2) Effect of substituted service.- Service substituted by order of the Court shall be as effectual as if it has been made on the defendant personally.
(3) Where service substituted, time for appearance to be fixed..-
Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require."
11. The learned Trial Judge ought not to have accepted the office note, unless procedure prescribed under Order V Rule 20 of CPC was strictly complied with. In the instant case, order dated 2.4.2013 placing the defendants ex-parte is clearly unsustainable. Consequently, the Judgment and Decree is liable to be set aside. Hence, the following:- 7 RFA No.827/2015
ORDER
(i) Appeal is allowed;
(ii) Judgment and Order dated 8.11.2013 passed in O.S.No.1252/2013 on the file of V Additional City Civil Judge, Bangalore, is set aside;
(iii) The matter is remitted back to the Trial Court for fresh disposal in accordance with law;
(iv) Parties shall appear before the Trial Court on 12.4.2018 and collect further dates from the Trial Court.
No costs.
Sd/-
JUDGE cp*