Karnataka High Court
Basavarajappa S/O Alias B.P.Hirematha vs Smt Goramma on 29 March, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 104889 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 104889 OF 2016 (GM-CPC)
BETWEEN:
1. BASAVARAJAPPA S/O ALIAS B.P.HIREMATTA
PANCHAPPA
AGED ABOUT 81 YEARS,
OCC AGRICULTURIST,
R/O MALAPURA VILLAGE,
SIRUGUPPA TALUK,
PRESENTLY RESIDING AT
GANGAVATHI
2. MALLIKARJUNA SWAMY ALIAS B.P.HIREMATHA
S/O BASAVARAJAPPA
AGED ABOUT 39 YEARS,
OCC AGRICULTURE,
R/O MALAPURA VILLAGE,
SIRUGUPPA TALUK,
PRESENTLY RESIDING AT
GANGAVATHI
...PETITIONERS
(BY SRI. MALLIKARJUNSWAMY B HIREMATH, ADVOCATE)
AND:
1. SMT GORAMMA, W/O JAMBANAGOUDA
AGED ABOUT 58 YEARS,
OCC HOUSEWIFE
R/O: SIRIGERI VILLAGE
SIRAGUPPA TALUK, DIST :BALLARI.
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WP No. 104889 of 2016
2. JAMBANAGOUDA S/O MALLESH GOUDA
SINCE DECEASED BY HIS L.RS.
2A. YARREMMA D/O. JAMBANAGOUDA,
AGE 40 YEARS, OCC: HOUSEWIFE,
R/O. ULLENUR VILLAGE, TQ. KARATHAGI,
DISTRICT KOPPAL.
2B. GANGAMMA D/O. JAMBANAGOUDA,
AGE 38 YEARS, OCC: HOUSEWIFE,
R/O. ULLENUR VILAGE, TQ. KARATHAGI,
DISTRICT KOPPAL.
2C. NAAGRUDRAGOUDA S/O. JAMBANAGOUDA,
AGE 36 YEARS, OCC: AGRICULTURE,
R/O. ULLENUR VILLAGE,
TQ. KARATHAGI, DISTRICT KOPPAL.
2D. LAXMAN D/O. JAMBANAGOUDA,
AGE 34 YEARS, OCC: HOUSEWIFE,
R/O. ULLENUR VILLAGE, TQ. KARATHAGI,
DISTRICT KOPPAL.
2E. SIDDANGOUDA S/O. JAMBANAGOUDA,
AGE 32 YEARS, OCC: AGRICULTURE, R/O. ULLENUR
VILLAGE, TQ. KARATHAGI, DISTRICT KOPPAL.
2F. ANNAPURNA D/O. JAMBANAGOUDA,
AGE 30 YEARS, OCC: HOUSEWIFE,
R/O. ULLENUR VILLAGE, TQ. KARATHAGI,
DISTRICT KOPPAL.
3. CHANDRASHEKAR SWAMY S/O CHANNA BASAIAH,
AGED 66 YEARS, OCC AGRICULTURIST,
R/O. MUDDATANUR VILLAGE, SIRUGUPPA TALUK,
DISTRICT BALLARI
...RESPONDENTS
(BY SRI. GODE NAGARAJ, ADVOCATE FOR:R2(A-F);
R3 - SERVED;
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WP No. 104889 of 2016
SRI. MRUTYUNAJAYA TATA BANGI, ADVOCATE FOR
PROPOSED R4;
R2(A-F) ARE TREATED AS L.RS. OF DECEASED
RESPONDENT NO.1.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED: 06.11.2015 AT ANNEXURE-G
PASSED IN CIVIL MISC. NO.9/2013 PASSED BY THE CIVIL
JUDGE AND JMFC, SIRUGUPPA AND CONSEQUENTLY
ALLOW CIVIL MISC.NO.9/2013 AND ETC.
THIS WRIT PETITION COMING ON FOR HEARING ON IA,
THIS DAY THE COURT MADE THE FOLLOWING;
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
a. Quash the order dated 06.11.2015 at Annexure-G passed in Civil Misc. No.9/2013 passed by the Civil Judge and JMFC, Siruguppa and consequently allow Civil Misc.No.9/2013.
b. Quash the order dated:16.04.2016 at Annexure-H passed in Misc. Appeal No.53/2015 by the Senior Civil Judge, Sirguppa.
2. O.S.No.132/2009 has been filed seeking for the specific performance of an agreement of sale. In the said suit, on notice being ordered, defendant No.1 has entered his appearance but did not file his written statement.
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3. As regards defendant Nos.2 and 3, the registered post dispatched to the address mentioned in the cause title were returned with an endorsement 'refused'. As such, defendant Nos.2 and 3 were placed exparte and the suit came to be decreed directing the defendants to execute a registered sale deed as per the terms of the agreement dated 05.03.1990.
4. Subsequent thereto, Misc.No.9/2013 had been filed under Order IX Rule 13 read with Section 151 of Code of Civil Procedure for setting aside the exparte decree dated 15.03.2011 passed in O.S.No.132/2009 contending that the petitioners therein came to know recently on 05.09.2013 about the exparte decree in O.S.No.132/2009. It was contended that the complete address of the petitioners has not been given. The plaintiffs had intentionally shown a incorrect address.
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5. Apart therefrom, it was contended that the petitioners are required to be given an opportunity to contest the matter. Objections were filed in the said proceedings, evidence was led.
6. Civil Judge and JMFC., Siruguppa vide its order dated 06.11.2015 dismissed the petition holding that the pension papers of petitioner No.1 i.e., defendant No.2 showed the same address as that shown in the cause-title of the plaint. Hence, the petitioners could not contend that the address is incorrect or insufficient when it is a very same address which has been shown in the pension papers.
7. That apart, the trial Court taking into consideration that the postman had not been examined to rebut the presumption under Section 27 of the General Clauses Act came to a conclusion that there was infact refusal and on the basis of the presumption under Section 27 of the General Clauses Act, held -6- WP No. 104889 of 2016 that the entry made in the returned cover is proper and correct.
8. The trial Court also went on to hold that the petitioners-defendant Nos.2 and 3 had not produced any document to show that they had shifted from the said address to the address shown in the Misc. Petition, the date on which they shifted to the said address nor was any document produced to prove the present address of the petitioners.
9. Aggrieved by the same, the petitioners challenged the order passed in Misc.No.9/2013 filed Misc.Appeal No.53/2015. The Senior Civil Judge, Siruguppa dismissed the said Misc.Appeal No.53/2015 confirming the order of the trial Court. The said Court held that when the petitioners were to contend that the address mentioned is wrong, it was their duty to give their correct address before the Court. In the absence of correct address being given by the -7- WP No. 104889 of 2016 petitioners, the Court cannot consider that the respondents had given a wrong address. The address given in the cause title being the same as that in the pension papers, the address being proper and correct, there was no requirement for the said Court to interfere with the order of the trial Court. It is aggrieved by the same, the petitioners are before this Court.
10. Sri.Mallikarjunswamy B Hiremath, learned counsel for the petitioners submits that:
10.1. the defendant No.1 has executed an agreement of sale in favour of the plaintiffs in the year 1990 on the basis of power of attorney which subsequently came into existence in the year 2003. The postman had never sought to serve the notice on the petitioners. Hence, the question of there being any refusal would not arise.-8- WP No. 104889 of 2016
10.2. that on an earlier occasion when the bailiff attached to the Court had sought to serve the notice, he has filed a report stating that there is no such person as defendant Nos.2 and 3 residing in the address given in the cause title.
Hence, the question of the postman reporting that there was a refusal of service would not arise.
11. Per contra, Sri.Gode Nagaraj, learned counsel for respondent Nos.2(a-f) would submit that the trial Court and the first Appellate Court has in detail gone into the submissions made by the learned counsel for the petitioners. The said Courts have categorically held that there is a refusal of service by the petitioners and this aspect having been established conclusively before the trial Court and the first Appellate Court and there being a concurrent finding by the said Courts, this Court ought not to interfere in the orders passed.
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12. Sri.Mrutyunjay Tata Bangi, learned counsel for proposed respondent No.4 would submit that he is a purchaser of the property subject matter of the suit from defendant Nos.2 and 3 during the pendency of the above proceedings. The said purchase being prior to filing of Civil Misc.No.9/2013, he is a bonafide purchaser for value and his interest is required to be protected.
13. Heard Sri.Mallikarjunswamy B.Hiremath, learned counsel for the petitioners, Sri.Gode Nagaraj, learned counsel for respondent Nos.2(a-f) and Sri.Mrutyunjay Tata Bangi, learned counsel for the proposed respondent No.4 and perused the papers.
14. The short question which arises in the present matter is as regards the efficacy and presumption in terms of Section 27 of the General Clauses Act as regards service of summons and endorsement made thereon by a postman.
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WP No. 104889 of 2016
15. Section 27 of the General Clauses Act reads as under:-
27 Meaning of service by post. Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
16. In the present case, though initially there was a dispute as regards whether the petitioners-defendant Nos.2 and 3 were residing in the address shown in the cause title, Sri.Mallikarjunswamy B.Hiremath, learned counsel for the petitioners does not contest the address of the petitioners as shown in the pension papers. If that be so, when the petitioners were residing in the said address, then they could not have stated that they were not residing in the said address. Even though the contention of the learned counsel for the petitioners is that the said address is shown at the date of retirement in the year 2004.
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WP No. 104889 of 2016
17. Though the submission is that the said address is of the year 2004, surprisingly, there is no evidence which has been produced by the petitioners as regards where the petitioners were residing at any given point of time, except to try and raise a doubt as regards the address.
18. There is no evidence on record produced by the petitioners as to when they started to living in the address shown in the cause title to the plaint or when they shifted from the said address. They have also not produced any evidence to show as to when they started residing in the address mentioned in Civil Misc.No.9/2013 or when they shifted from the said address.
19. The fact however remains that independent documentary proof viz., pension papers show the address of the petitioners as that in the cause title of the plaint. Surprisingly, the petitioners have also not
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WP No. 104889 of 2016 examined the postman who has submitted a report as regards the refusal of service made by the petitioners except to contend that the postman never came to the petitioners for them to refuse.
20. The only contention of the petitioners from the entire records is that the postman did not come to the petitioners for service and therefore, there could not be refusal. In this regard, there is no evidence which has been produced by the petitioners, the postman ought to have been examined who has not been examined. That apart as observed above, the petitioners have not led evidence as regards where they are residing, in the absence of the same, the petitioners cannot contend that they were or were not residing at the address shown in the cause title.
21. In view of the above, the trial Court and the first Appellate Court having come to a categorical conclusion that there was infact service sought to be
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WP No. 104889 of 2016 effected and the same was refused which has been endorsed by the postman in the returned RPAD cover, I am of the considered opinion that presumption under Section 27 of the General Clauses Act would be applicable to the present case and the petitioners cannot contend otherwise, there being no rebuttable evidence placed on record.
22. There being no merits in the present petition, petition stands dismissed.
23. Liberty is reserved to the proposed respondent No.4 to initiate such proceedings as advised against the petitioners.
24. All pending applications stand dismissed.
Sd/-
JUDGE Prs*