IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE WRIT PETITION NO. 44438/2014 (GM-CPC) BETWEEN SRI ABDUL RAHIMAN S/O ALI BEARY AGED ABOUT 49 YEARS R/O BEEJUVALLI VILLAGE KASABA HOBLI MUDIGERE TALUK-577132 CHIKMAGALUR DISTRICT …PETITIONER (BY SRI SUYOG HERELE, ADVOCATE FOR SRI ARUNA SHYAM M, ADVOCATE) AND 1. SRI RAGHU S/O LATE ANANDA SHETTY AGED ABOUT 37 YEARS R/AT KUNNAHALLI VILLAGE HALASE POST-577139 MUDIGERE TALUK 2. SMT. RADHA W/O JANARDHAN D/O LATE ANANDA SHETTY AGED ABOUT 34 YEARS R/O GOWDAHALLI VILLAGE MUDIGERE TALUK-577132 (NOTE: BOTH THE RESPONDENTS ARE LRS OF SMT. SAROJAMMA, WIFE OF LATE ANANDA SHETTY, THE DEFENDANT IN O.S.NO.14/2004) …RESPONDENTS (BY SRI J D KASHINATH, ADVOCATE FOR R-1 & 2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 17.07.2014 IN CIVIL MISC.NO.1/2010 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC AT MUDIGERE VIDE ANNEXURE-A AND CONSEQUENTLY DISMISS CIVIL MISC. NO.1/2010 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MUDIGERE.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel appearing for the petitioner.
2. By this writ petition under Article 227 of the Constitution of India, the petitioner who is the original plaintiff has taken an exception to the order dated 17th July 2014 passed by the learned Trial Judge. By the said order, the application made by the respondents (defendants) under Rule 13 of Order IX of the Code of Civil Procedure, 1908 (for short ‘the said Code’) has been allowed.
3. In the suit filed by the petitioner, there was an ex- parte decree passed on 28th May 2005. In the application for setting aside the ex-parte decree, the contention of the respondents was that there was no proper service of summons. It was further contended that only when the notice of the execution petition was served that the respondents became aware of the ex- parte decree. The impugned order setting aside the ex-parte decree is challenged by the learned counsel appearing for the petitioner firstly, by pointing out that the summons was served on the daughter of the original defendant who was an adult on the date of service. Reliance was placed on Rule 15 of Order V of the said Code which permits service of summons on an adult member of family of a party. His submission is that the daughter was not examined and the learned Trial Judge has still accepted the case that there was no proper service of summons. He also urged that Article 123 of the Schedule to the Limitation Act, 1963 provides for a limitation period of 30 days and in the present case, there is a delay of five years and even the application for condonation of delay was not filed.
4. The learned counsel appearing for the respondents supported the impugned order.
5. I have carefully considered the submissions. By an amendment made on 9th February 1967 by the then High Court of Mysore in exercise of the powers under Section 122 of the said Code, Rule 15 of Order V was substituted which provided for service of summons on any adult male member of the family. However, subsequently, the Central amendment made by Act No.104 of 1976 has substituted the earlier Rule 15 by providing specifically that service of summons can be made on any adult member of the family, whether male or female, who is residing with the concerned party. The said amendment of 1967 being repugnant to the subsequent Central amendment by Act No.104 of 1976, what will prevail is the subsequent Central amendment.
6. Perusal of the impugned order shows that the process server has recorded that the summons was served on the daughter of the original defendant. The original defendant examined herself in support of the application under Rule 13 of Order IX and stated that the summons was not served to her daughter. However, after the original defendant was partly examined, she died. Thereafter, the first respondent was examined who stated on oath that the summons was not served to his mother or sister.
7. It is true that the daughter of the original defendant was not examined. Nevertheless, the Trial Court has accepted the testimony of the son of the original defendant that summons was not served either to his mother or sister.
8. The effect of the impugned order is that an ex-parte decree has been set aside. The application for setting aside the ex-parte decree was filed immediately after service of notice of the execution petition. It is true that in view of the period of 30 days provided under Article 123 of the Limitation Act, an application for condonation of delay ought to have been made. However, the Trial Court has accepted the case of the respondents that the summons was not duly served. The Trial Court also accepted that only after service of notice of Execution Petition No.1/2010 that the original defendant became aware of the ex-parte decree and an application was filed on 7th April 2010 for setting aside the ex- parte decree. Technically, the finding recorded by the learned Trial Judge that the application was filed within the limitation is erroneous. However, once the Trial Court accepts that there was no proper service of summons, the exercise of setting aside the impugned order and permitting the respondents to apply for condonation of delay will be virtually an exercise in futility. Moreover, it will delay the hearing of the main suit. After the impugned order, the suit has proceeded and now it is for final arguments.
9. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India. Writ jurisdiction is always discretionary. It is not necessary for the Court to interfere with every order on the ground that the same is illegal. In the present case, I find that substantial justice has been done under the impugned order and therefore, the jurisdiction under Article 227 of the Constitution of India need not be exercised.
10. There is another important aspect of the matter. It is not disputed that on the basis of the impugned order, the hearing of the suit proceeded and now it is at the stage of arguments. If the writ petition is allowed and ultimately after remand again the respondents succeed, it is the petitioner who will suffer prejudice.
11. Hence, no case for interference is made out. The writ petition is accordingly rejected.
Sd/- CHIEF JUSTICE bkv