IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.8733/2019 (GM – CPC) BETWEEN:
SMT.ALIYA FARUK, (WRONGLY SHOWN IN THE PLAINT AS ALIYA BEGUM) W/O LATE MOHAMMED FARUK, AGED ABOUT 68 YEARS R/AT No.8/9, EDWARD ROAD, APARTMENT No.301, PRESTIGE SHANGRILLA APARTMENTS, QUEENS ROAD, BENGALURU-560001. ... PETITIONER [BY SRI H.R.NARAYANA RAO, ADV. FOR SRI RAJESWARA P.N., ADV.] AND:
1. Mrs. AYESHA BEGUM W/O MOHAMMED MUNEERUDDIN D/O MOHAMMED FARUK AGED ABOUT 47 YEARS, R/AT HIG-463, MUGAPPAIR EAST ERI-SCHEME, CHENNAI-600037 PRESENTLY AT APT #101, REDIFICE BIRD OF PARADISE OLD NO.219, RAJMAHAL VILAS EXTENSION, SADASHIVANAGAR BENGALURU-560080 2. Mrs. ZEHRA NASIR ALSO KNOWN AS ZEHRA FARUK D/O MOHAMMED FARUK W/O NASIR MAHMOOD AGED ABOUT 46 YEARS, APT #101, REDIFICE BIRD OF PARADISE OLD NO.219, RAJMAHAL VILAS EXTENSION, SADASHIVANAGAR BENGALURU-560080 3. Mr. MOHAMMED OMAIR S/O LATE MOHAMMED FARUK AGED ABOUT 35 YEARS, R/A NO.8/9, EDWARD ROAD, APT NO.301, PRESTIGE SHANGRILLA APTS QUEENS ROAD, BENGALURU-560001 4. Mrs. UZMA BANU W/O HISHAM D/O MOHAMMED FARUK AGED ABOUT 43 YEARS, R/A NO.2/2, BELLARY ROAD, RAJMAHAL VILAS EXTENSION, 2A, REGENCY ORCHARD BENGALURU-560080 5. Mr. MOHAMMED AYUB S/O LATE MOHAMME ABDUL RAWOOF AGED ABOUT 58 YEARS, R/A NO.96, MC PHERSON ROAD ARAFA ABODE APARTMENTS, 2ND FLOOR, OPP VILLAGE SUPERMARKET, COOKE TOWN BENGALURU-560005 6. Mrs. SABIHA BEGUM W/O LATE MOHAMMED IQBAL AGED ABOUT 66 YEARS 7. Mr. MOHAMMED SHOAIB S/O LATE MOHAMMED IQBAL AGED ABOUT 47 YEARS RESPONDENT Nos.6 & 7 R/AT NO.2/2, BELLARY ROAD RAJMAHAL VILAS EXTENSION, 2A, REGENCY ORCHARD BENGALURU-560080 8. M/s FLAT WORLD SOLUTIONS PRIVATE LIMTIED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING OFFICE AT:
CORPORATE COURT NO.15, GROUND FLOOR, INFANTRY ROAD, BEHIND MEDINOVA HOSPITAL BENGALURU-560001 9. M/s NABLER WEB SOLUTIONS PRIVATE LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING OFFICE AT CORPORATE COURT NO.15, GROUND FLOOR, INFANTRY ROAD, BEHIND MEDINOVA HOSPITAL BENGALURU-560001 10. M/s COMPUTER ACCESS (P) LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING OFFICE AT # CORNICHE, 15/3, INFANTRY ROAD SHIVAJI NAGAR BENGALURU-560001 11. M/s INWISE INVESTMENT MANAGEMENT A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING OFFICE AT # CORNICHE 15/3, INFANTRY ROAD SHIVAJI NAGAR, BENGALURU-560001 12. FEDELITY IT JOBS A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING OFFICE AT # CORNICHE 15/3, INFANTRY ROAD SHIVAJI NAGAR BENGALURU-560001 13. M/s ORIENT EXCHANGE & FINANCIAL SERVICES (P) LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING OFFICE AT # CORNICHE 15/3, INFANTRY ROAD SHIVAJI NAGAR, BENGALURU-560001 14. M/s ADITYA BIRLA CAPITAL A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING OFFICE AT CORPORATE COURT NO.15, GROUND FLOOR, INFANTRY ROAD, BEHIND MEDINOVA HOSPITAL BENGALURU-560001 15. M/s BHARATHI AXA LIFE INSURANCE COMPANY LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING OFFICE AT CORPORATE COURT NO.15, GROUND FLOOR, INFANTRY ROAD, BEHIND MEDINOVA HOSPITAL BENGALURU-560001 ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DTD:16.1.2019 IN O.S.NO.25055/2018 PASSED BY THE HON'BLE 57TH ADDL, CITY CIVIL AND SSSIONS JUDGE [CCH-58] BENGALURU [ANNEXURE-A] THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the order dated 16.01.2019 in O.S.No.25055/2018 passed by the 57th Additional City Civil and Sessions Judge, Bengaluru (CCH-58) (‘Trial Court’ for short).
2. Respondent Nos.1 and 2 herein – plaintiffs filed a suit for partition in O.S.No.25055/2018. The petitioner who is arrayed as defendant No.1 in the suit proceedings has entered appearance through her learned counsel and contested the matter along with her son defendant No.2. Defendant No.3 is the daughter of defendant No.1 – petitioner. In the said proceedings, the Trial Court passed an order reissuing the summons to defendant No.3 through her mother through Court and through RPAD since the suit is for partition and there was no representation on behalf of defendant No.3 when the matter was called on 23.01.2019. The said order is impugned herein.
3. Learned counsel Sri. H.R. Narayana Rao appearing for the petitioner placing reliance on the Karnataka High Court Amendment to Order 5 Rule 15 would submit that service may be made on only an adult male member of the family of the defendant who is residing with him. As such, directions issued by the Trial Court to issue summons to defendant No.3 through the petitioner, a female member of the family, is contrary to the Rule 15 of Order 5 of the Karnataka High Court Amendment, which has come into effect from 30.03.1967 by Notification No.ROC No.2526/1959, dated 09.02.1967. Thus, it is submitted that the order impugned suffers from jurisdictional error and the same calls for interference by this Court.
4. I have carefully considered the arguments of the learned counsel appearing for the petitioner and perused the material on record.
5. The Karnataka High Court Amendment which has been referred to by the learned counsel for the petitioner relating to Order 5 Rule 15 substituted by Notification No.ROC No.2526/1959, dated 09.02.1967, has come into effect from 30.03.1967, the same reads thus:-
"15. Where in any suit the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being thereat within a reasonable time, then unless he has an agent duly empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant (not being a servant) who is residing with him.
Provided that where such adult male member has an interest in the suit and such interest is adverse to that of the defendant, summons so served shall be deemed for the purpose of Rule 13 of Order IX of this Code or of the 3rd column of Article 123 of the Schedule of the Limitation Act, 1963 not to have been duly served.”
6. It was argued that service of summons on behalf of defendant No.3 can be made only on any adult male member of the family and not on or through defendant No.1 – mother of defendant No.3.
7. Order 5 Rule 15 of CPC has been substituted by the Parliament by Act No.104/1976 with effect from 01.02.1977 and the same is quoted hereunder:-
“15. Where service may be on an adult member of defendant’s family.- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him.
Explanation.- A servant is not a member of the family within the meaning of this rule.
8. Section 97 of the Amendment Act No.104/1976 provides thus:-
“97. (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.”
9. The cognate bench of this Court in the case of Smt. Kanthamma @ Kadiramma and others vs. Chikkanasarappa since deceased, by his LRs. and Others reported in ILR 2003 KAR 3714 has observed thus:-
“The registered notice issued to R-2 is returned un-served with a shara that "party was not present". The provisions of Order 5 Rule 15 provides that "when the party is not present, service could be effected on the adult member of the family" and it would be a valid service in law.
The process staff of the Courts perhaps may be aware of this Rule and comply the Rule when the party is not available for personal service they would effect the service on the available adult member of the family. However, when the notice sent by registered post, a postman who is not well versed with the provisions of the Code invariably returns the post with a shara "party not present or not available" for want of instruction to the postman to serve on the adult member of the family if the party-addressee is not available for service. Therefore, necessary instructions to the postman about the compliance of the rule is to be noted on the envelopes with a clear instruction that the postman could deliver the registered post sent by the Court to any adult member of the family if party/addressee is not available for personal service. In order to secure effective compliance from the postman a procedure could be devised. Where under a rubber stamp endorsement containing instructions to the postman to deliver to any adult member of the family without insisting any authorisation of party/addressee when party or addressee is not available for personal service is to be impressed and further the postman should be instructed to endorse on the postal cover about the need of alternative service of delivery on the adult member of the family on account of non availability of the addressee. Such a course of action obviates to a large extent the re-issuance of summons and notices.
The Registrar General shall take note of the observations made and shall insist and see that on all registered covers (containing Court notices/summons) before they are transmitted by the post, the aforesaid instructions are mentioned by using rubber stamp impression. The instructions being same on all such registered posts the use of rubber stamp impression would obviate the need of manual writing on every cover to reduce the manual work. The Registrar General is directed to communicate the copy of the order to all the Courts in the State for faithful compliance and observance.”
10. It is thus clear that subsequent to amendment of Order 5 Rule 15 by Act No.104/1976 with reference to Section 97 of Chapter – V, any amendment made by the High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. Hence, the reference made to the Karnataka High Court Amendment issued by the Notification No.ROC No.2526/1959, dated 09.02.1967, which has come into effect from 30.03.1967 has no bearing in view of the repealed provisions as discussed aforesaid. Hence, the provisions of Order 5 Rule 15 which has been substituted by Act No.104/1976 shall be applicable to the facts of the case. The arguments of the learned counsel for the petitioner that the service of notice has to be made only on the adult male member of a family is misconceived and it is clear that such service of notice under Order 5 Rule 15 may be made on any adult member of the family, whether male or female who is residing with him/her.
11. Further, the arguments of the learned counsel for the petitioner that defendant No.3 is not residing with the petitioner does not merit any consideration. If such issue of summons through the petitioner is not possible, the same can be reported to the Court. It is only an additional mode of service to be made through her mother to defendant No.3 in a partition suit, in addition to issue of summons through Court and through RPAD. In view of the aforesaid, the arguments of the learned counsel for the petitioner cannot be countenanced.
Writ petition is bereft of any substance and accordingly stands dismissed.
Sd/- JUDGE PMR