IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.46780 OF 2014 (GM-CPC) BETWEEN:
RAMANNA, S/O MUNISWAMY, AGED ABOUT 50 YEARS, RESIDING AT CHELLAGHATTA VILLAGE, VARTHUR HOBLI, YAMLUR PO, BANGALORE – 560 037.
(BY SRI.ABHINAY Y.T, ADVOCATE) AND:
1. K.S.SUNIL GUPTA, S/O Y.S.GUPTA, AGED ABOUT 46 YEARS, RESIDING AT 461/B, 7TH CROSS, 7TH BLOCK, WEST JAYANAGAR, BANGALORE - 560 082.
2. SMT.PILLAMMA, W/O MUNISWAMY, AGED ABOUT 84 YEARS, 3. SRI.RAMASWAMY, S/O MUNISWAMY, AGED ABOUT 44 YEARS, 4. SMT.MUNICHOWDAMMA @ DODDACHOWDAMMA, W/O THIMARAJA, AGED ABOUT 64 YEARS, 5. SMT.CHIKKACHOWDAMMA, W/O KONADALAPPA, AGED ABOUT 57 YEARS, ... PETITIONER 6. SMT.RAMAKKA, D/O MUNISWAMY, AGED ABOUT 41 YEARS, 7. SMT.MUTTA, S/O LATE ANNAIAHAPPA, AGED ABOUT 59 YEARS, RESPONDENT NO.2 TO 7 ARE RESIDING AT CHELLAGHATTA VILLAGE, VARTHUR HOBLI, YAMLUR PO, BANGALORE - 560 037.
8. SMT.CHOWDAMMA, W/O LATE GUNDAPPA, AGED ABOUT 54 YEARS, RESIDING AT BODANAHOSAHALLI, BIDARAHALLY HOBLI, HOSKOTE TALUK, BANGALORE DISTRICT.
9. SMT.GOWRAMMA, W/O CHANDRAPPA, AGED ABOUT 44 YEARS, 10. SMT.GUNAMMA, W/O RAJAPPA, AGED ABOUT 46 YEARS, 11. SMT.DODDA MUNIYAMMA, W/O VENKATASWAMY, AGED ABOUT 38 YEARS, 12. SMT.MUNILAKSHMAMMA, W/O MUNIYAPPA, AGED ABOUT 49 YEARS, 13. SMT.MUNIRATHNAMMA, W/O MUNIYAPPA, AGED ABOUT 52 YEARS, RESPONDENTS NO.9 TO 13 ARE RESIDING AT CHELLAGHATTA VILLAGE, VARTHUR HOBLI, YAMLUR PO, BANGALORE - 560 037.
14. S.M.SATHYANARAYANA, S/O MUNIRAMAIAH, AGED ABOUT 70 YEARS, 15. S.S.KAILASH, S/O SATHYANARAYANA, AGED ABOUT 41 YEARS, RESPONDENTS NO.14 AND 15 ARE RESIDING AT 15/A, SRI KRISHNA RAO ROAD, BASAVANAGUDI, BANGALORE - 560 004.
16. KARTHIK RAO, S/O SRIDHAR, AGED ABOUT 39 YEARS, RESIDING AT 1/1, CURLEY STREET, BANGALORE.
17. SMT.BHAVANI SHETTY, SINCE DEAD BY LR’S, a. RYTHIK SHETTY, D/O ASHOK KUMAR SHETTY, AGED ABOUT 40 YEARS, RESIDING AT CINCHONA ESTATE, IBBNIVALAVADI VILLAGE, SOMAWARPET TALUK, KODAGU DISTRICT - 571 236.
18. GOLFLINKS SOFTWARE PARK PRIVATE LIMITED, A COMPANY REGISTERED UNDER THE COMPANIES ACT,1956 AND HAVING ITS REGISTERED OFFICE AT # 16, ST.MARKS ROAD, BANGALORE – 561 240.
... RESPONDENTS (BY SMT.S.N.SUDHA, ADVOCATE FOR R1; SRI.R.V.S.NAIK, SENIOR ADVOCATE A/W SMT.RASHMI SUBRAMANYA, ADVOCATE FOR R18; NOTICE TO R2 TO 18 IS D/W V/O DATED 10.10.2014) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS DATED 22.8.14, PASSED BY THE ADDL. CITY CIVIL & SESSION JUDGE, BANGALORE ON I.A.NO.20 IN O.S.NO.9363/2004, VIDE ANN-C & CONSEQUENTLY ALLOW I.A.NO.20 AS PRAYED FOR, AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the second defendant in a suit for specific performance in O.S.No.9363/2004 is invoking the writ jurisdiction of this Court for assailing the order dated 22.08.2014, a copy whereof is at Annexure – C, whereby the learned Additional City Civil and Sessions Judge, Bengaluru, has rejected his application in IA No.20 filed under Order IX Rule 7 of CPC, 1908 for setting aside the order by which he was placed ex parte. The contesting respondents having entered appearance through their counsel resist the writ petition.
2. Learned counsel for the petitioner argues that the impugned order is bad because: a) it proceeds on a wrong legal premises that one single visit by the process server to the residence of the defendant is sufficient when his mother accepted the service of summons when law requires otherwise, b) Order V Rule 15 of CPC requires an endorsement by the process server as to non-availability of the defendant as a precondition for serving the process on his adult family members, which is lacking in this case, and c) the service of notice on the mother of the defendant even otherwise also is not in accordance with law which the Court below has ignored. So arguing, he seeks allowing of the writ petition.
3. Learned Sr. Counsel, Shri R.V.S.Naik appearing for the advocate on record for the contesting respondents, per contra, contends that there is no error of law or fact that infects the impugned order; service of notice on the adult member of the family of the defendant, when he is away from residence is not disputed and such service is sufficient in terms of Order V Rule 15 of amended CPC w.e.f. 01.02.1977 and there is no requirement of any endorsement to be made by the process server as argued by the petitioner; the petitioner is not a scrupulous litigant who deserves remedy at the hands of Writ Court. So contending, he seeks dismissal of the writ petition.
4. I have heard the learned counsel for the parties and perused the writ petition papers and the original LCR as well. This Court declines to grant indulgence in the matter for the following reasons:
i) the suit in O.S.No.9363/2004 is for a decree of specific performance; it is founded on an agreement to sell dated 31.03.1991; admittedly, the suit summons was served on the mother of petitioner 21.06.2005; learned counsel for the petitioner does not dispute that his mother was served; however, the petitioner has made the subject application only on 08.08.2014 i.e., after a lapse of more than nine years reckoned from the order dated 21.07.2005, whereby he was placed ex parte; his version that he came to know of the suit proceedings when in the last week of July, 2014 the plaintiff revealed to him does not generate confidence;
ii) the petitioner either in the Court below or in this Court, has revealed about the service of Court Notice effected by the process server on his mother; the text of the application and the affidavit supporting the same as also the text of the writ petition prima facie show that he has taken evasive plea; in his affidavit he states “..I have never been tendered or served with notice or summons in this case …” and at para no.6 of his writ petition, he avers “notice issued to the petitioner i.e., defendant No.2 is said to have been served on his mother…” a litigant who does not speak the truth in the litigation is not a bona fide litigant and such a person cannot invoke the Writ Jurisdiction of this Court by couching his case in a language skillfully employed;
iii) Order V Rule 15 of CPC as amended in the year 1977, has abolished gender discrimination by providing for service of Court Notice on any adult member of the family of the party residing in the same house; prior to amendment, service of notice could be made on any adult male member of the family of a party to the proceedings; accordingly the process server has served the notice on the mother of the petitioner; Order V Rule 15 of CPC as amended in Karnataka w.e.f. 30.03.1967, reads as under:
“Delete Rule 15 and substitute the following:- “15. Where in any suit the defendant is absent from his residence at the time when service is sought to be effected to him thereat and there is no likelihood of his being found 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 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 purposes of R.13 of Order IX of this Code or of the 3rd Column of Art. 123 of the Schedule of the Limitation Act, 1963, not to have been duly served.”
the service of summons on the member of the family cannot be held insufficient unless, the proviso to the Rule is invokable, which in this case is not, since, it is nobody’s version that the mother had an interest in the suit adverse to that of the petitioner;
iv) the contention that Order V Rule 15 of CPC expects more than one visit of the process server to the residence of the party before effecting service of notice on any adult member of family of defendant is too farfetched an argument which cannot be sustained without straining the language of law; it hardly needs to be mentioned that the process server has to make all reasonable efforts to serve the notice, which duty he has discharged in the present case;
v) the decision of High Court of Delhi in the case of RAVI DUTT VS. CHUNI LAL, AIR 2004 DEL 405 cited by the petitioner does not come to his aid; at para no.22 of the judgment the Delhi High Court has given broad guidelines for constituting a Committee for suggesting guidelines so that the system of service of Court Notice is improved; no discernible ratio emerges from this decision in support of the contentions urged by the petitioner; and, vi) the service of notice on an adult member of the family can be held sufficient only if the process server makes an endorsement to the effect that there was no likelihood of the defendant being found at his residence within a reasonable time again appears to be too farfetched an argument; if that is done, it is most ideal is true; but if that is not done, the service of notice otherwise valid needs to be invalid, is too much to say especially when it is not the case of the petitioner that within a reasonable time after the visit of the process server, he had come back home; there is no warrant for construing some text in Order V Rule 15 of CPC to the effect that such an endorsement in writing by the process server is a sine qua non.
In the above circumstances, this writ petition being devoid of merits, stands dismissed.
No costs.
Sd/- JUDGE Bsv