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2022 Supreme(Online)(Kar) 45662
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON9BLE MR. JUSTICE V.SRISHANANDA
REGULAR FIRST APPEAL No.1234 OF 2012
C/W
REGULAR FIRST APPEAL NO.1232 OF 2012
C/W
REGULAR FIRST APPEAL NO.1233 OF 2012
C/W
REGULAR FIRST APPEAL NO.1235 OF 2012
IN RFA NO.1234 OF 2012
BETWEEN:
SRI. K PARAMESHWARAPPA
S/O. KALLAPPA,
AGED ABOUT 52 YEARS
RESIDING AT
2ND CROSS,
MANJUNATHA EXTENSION,
DEVASANDRA, KRISHNARAJAPURAM
BANGALORE-560 036.
&APPELLANT
(BY SRI. A.C. BALARAJ, ADVOCATE)
AND:
1.
SRI. V VENKATESHALU,
SINCE DECEASED BY HIS
LEGAL HEIRS,
1(a). SMT. RAMANAMMA,
W/O. LATE. V.VENKATESHALU,
AGED ABOUT 63 YEARS.
1(b). SRI. V. BHASKAR,
S/O. LATE V. VENKATESHALU,
AGED ABOUT 39 YEARS.
1(c). SRI. V. BALACHANDRA
S/O. LATE V. VENKATESHALU,
AGED ABOUT 37 YEARS.
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1(d). SRI. VENKATARAMAN,
S/O. LATE V. VENKATESHALU,
AGED ABOUT 33 YEARS
RESPONDENTS 1(a) TO 1(d)
ALL RESIDING AT
NO. 162, 5TH MAIN ROAD
K.M. COLONY, V.R.NAGAR
JAYANAGAR 1SITE NO. BLOCK
BANGALORE-560011
2.
SRI. MUSTAQ AHAMED
S/O. IBRAHIM SHARIFF,
C/O. SYED IBRAHIM,
R/O NO. 341, 32ND CROSS,
TILAKNAGAR,
BANGALORE-560 011.
REPRESENTED BY HIS
GPA HOLDER
SRI. P.RAMACHANDRA REDDY
S/O. P.NARAYANA REDDY
AGED ABOUT 59 YEARS
RESIDING AT NO.111
2ND FLOOR, V S R MANSION
B T S ROAD, WILSON GARDEN
BANGALORE-560027
3.
SRI. K.M.RAJENDRAN,
S/O. M.KRISHNAMURTHY,
AGED ABOUT 55 YEARS,
R/AT NO.57, 4TH CROSS,
LALBAGH ROAD,
BANGALOREF-560 027.
4.
SRI. P. RAMACHANDRA REDDY
S/O P NARAYANA REDDY,
AGED ABOUT 59 YEARS,
RESIDING AT NO. 111,
2ND FLOOR, V.S.R. MANSION,
B.T.S ROAD, WILSON GARDEN,
BANGALORE-560 027.
&RESPONDENTS
(BY SRI. B SHARATH KUMAR , ADVOCATE FOR R1 (a-d),
R2 IS SERVED, R3 AND R4 - NOTICE D/W
V/O/D:27/09/2013)
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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED:25.08.2011 PASSED IN
O.S.2209/2005 ON THE FILE OF THE III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY, DECREEING THE SUIT FOR
DECLARATION AND POSSESSION.
IN RFA NO.1232 OF 2012
BETWEEN:
SRI. K. PARAMESHWARAPPA
S/O. KALLAPPA,
AGED ABOUT 52 YEARS,
RESIDING AT 2ND CROSS,
MANJUNATHA EXTENSION,
DEVASANDRA,
KRISHNARAJAPURAM,
BANGALORE-560036
&APPELLANT
(BY SRI. A.C. BALARAJ, ADVOCATE)
AND:
1.
SRI. V.VENKATESHAIAH
S/O. VENAKA RAMAIAH
AGED ABOUT 46 YEARS
RESIDENT OF
KRISHNA MURTHY COLONY
SIDDAPURA LAYOUT
BANGALORE-560011
2.
SRI. MUSTAQ AHAMED
S/O. IBRAHIM SHARIFF
C/O. SYED IBRAHIM
R/O.NO. 341, 32ND CROSS
TILAKNAGAR,
BANGALORE-560011
REPRESENTED BY HIS
GPA HOLDER, SRI P RAMACHANDRA REDDY
S/O. P.NARAYANA REDDY
AGED ABOUT 59 YEARS
RESIDING AT NO.111
2ND FLOOR, V S R MANSION
B T S ROAD, WILSON GARDEN
BANGALORE-560027
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3.
SRI K M RAJENDRAN
S/O M KRISHNAMURTHY
AGED ABOUT 55 YEARS
R/AT NO. 57, 4TH CROSS
LALBAGH ROAD
BANGALOREF-560027
4.
SRI P RAMACHANDRA REDDY
S/O P NARAYANA REDDY
AGED ABOUT 59 YEARS
RESIDING AT NO. 111
2ND FLOOR, V S R MANSION
B T S ROAD, WILSON GARDEN
BANGALORE-560 027
&RESPONDENTS
(BY SRI. B SHARATH KUMAR , ADVOCATE FOR R1,
R2 IS SERVED, R3 AND R4 - NOTICE D/W
V/O/DATED:01/10/2013)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED:21.08.2009 PASSED IN
O.S.2207/2005 ON THE FILE OF THE XII-ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY, DECREEING THE SUIT FOR
DECLARATION.
IN RFA NO.1233 OF 2012
BETWEEN:
SRI. K.PARAMESHWARAPPA,
S/O. KALLAPPA,
AGED ABOUT 52 YEARS,
RESIDING AT 2ND CROSS,
MANJUNATHA EXTENSION,
DEVASANDRA,
KRISHNARAJAPURAM,
BANGALORE - 560 036
&APPELLANT
(BY SRI. A.C.BASAVARAJ, ADVOCATE)
AND:
1.
SRI. C.MANOHAR,
S/O. CHINNARAJ,
AGED ABOUT 51 YEARS,
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RESIDING AT NO.358,
OLD NO.643, 6TH MAIN,
4TH CROSS, SOMESWARA,
SLUM VENKATAREDDY NAGAR,
JAYANAGAR 1ST BLOCK,
BANGALORE - 560 011.
2.
SRI. K.M.RAJENDRAN,
S/O. M.KRISHNAMURTHY,
AGED ABOUT 55 YEARS,
R/AT. NO.57, 4TH CROSS,
LALBAGH ROAD,
BANGALORE - 560 027.
3.
SRI. MUSTAQ AHAMED,
S/O. IBRAHIM SHARIFF,
C/O. SYED IBRAHIM,
R/O. NO.341, 32ND CROSS,
TILAKNAGAR,
BANGALORE - 560 011.
REPRESENTED BY HIS
GPA HOLDER,
SRI. P.RAMACHANDRA REDDY,
S/O. P.NARAYANA REDDY,
AGED ABOUT 59 YEARS,
RESIDING AT NO.111,
2ND FLOOR, V.S.R.MANSION,
B.T.S ROAD, WILSON GARDEN,
BANGALORE - 560 027.
4.
SRI. P.RAMACHANDRA REDDY,
S/O. P.NARAYANA REDDY,
AGED ABOUT 59 YEARS,
RESIDING AT NO.111,
2ND FLOOR, V.S.R.MANSION,
B.T.S ROAD, WILSON GARDEN,
BANGALORE - 560 027.
&RESPONDENTS
(BY SRI B.SHARATH KUMAR, ADVOCATE FOR R1;
R2 AND R4 - NOTICE D/W V/O.DT.05.09.2022;
NAME OF R3 IS CALLED OUT, ABSENT V/O/DT.22.08.2022)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED:21.08.2009 PASSED IN
O.S.NO.2208/2005 ON THE FILE OF THE XII-ADDL. CITY CIVIL
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AND SESSIONS JUDGE, BANGALORE CITY, DECREEING THE SUTI
FOR DECLARATION.
IN RFA NO.1235/2012
BETWEEN
SRI. K.PARAMESHWARAPPA,
S/O. KALLAPPA,
AGED ABOUT 52 YEARS,
RESIDING AT 2ND CROSS,
MANJUNATHA EXTENSION,
DEVASANDRA,
KRISHNARAJAPURAM,
BANGALORE - 560 036
&APPELLANT
(BY SRI. A.C.BALARAJ, ADVOCATE)
AND
1.
DR.M.R.NAGARAJ,
S/O. M.REVANNA,
AGED ABOUT 48 YEARS,
RESIDING AT NO.3,
BANGALORE - 560 027
2.
SRI. K.M.RAJENDRAN,
S/O. M.KRISHNAMURTHY,
AGED ABOUT 55 YEARS,
R/AT. NO.57, 4TH CROSS,
LALBAGH ROAD,
BANGALORE - 560 027
3.
SRI. MUSTAQ AHAMED,
S/O. IBRAHIM SHARIFF,
C/O. SYED IBRAHIM,
R/O. NO.341, 32ND CROSS,
TILAKNAGAR,
BANGALORE - 560 011
REPRESENTED BY HIS
GPA HOLDER, SRI. P.RAMACHANDRA REDDY,
S/O. P.NARAYANA REDDY,
AGED ABOUT 59 YEARS,
RESIDING AT NO.111,
2ND FLOOR, V.S.R. MANSION,
B.T.S. ROAD, WILSON GARDEN,
BANGALORE - 560 027
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4.
SRI. P.RAMACHANDRA REDDY,
S/O. P.NARAYANA REDDY,
AGED ABOUT 59 YEARS,
RESIDING AT NO.111,
2ND FLOOR, V.S.R. MANSION,
B.T.S. ROAD, WILSON GARDEN,
BANGALORE - 560 027
&RESPONDENTS
(R1 AND R3 ARE SERVED;
R2 AND R4 - NOTICE D/W V/O/DT.05/09/2022)
THIS RFA IS FILED UNDER SECTION.96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED:04.08.2011 PASSED IN
O.S.NO.2210/2005 ON THE FILE OF THE III-ADDL. CITY CIVIL
AND SESSIONS JUDGE, BANGALORE CITY, DECREEING THE SUIT
FOR DECLARATION.
THESE RFAS' COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
['C SHIVAKUMAR', '', 'BALARAJ A C', 'B SHARATHKUMAR']
All these four appeals arising out of the judgment
passed in original suits filed before the Trial Court and for
the sake of convenience the same are depicted in the table
below:
Sl.No.
RFA No.
O.S.No.
Date of
disposal
RFA No.1234/2012
O.S.No.2209/2005
25/08/2011
RFA No.1232/2012
O.S.No.2207/2005
21/08/2009
RFA No.1233/2012
O.S.No.2208/2005
21/08/2009
RFA No.1235/2012
O.S.No.2210/2005
04/08/2011
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According to the appellant/defendant No.3 in all
the four cases, all these suits have been disposed of placing
the appellant/defendants exparte.
Learned counsel for the appellant/defendant
No.3 submits that though the defendants were residing in
the same address, the Court process server returned the
notices and suits summons as 'in sufficient address' and he
suspects some foul play in such endorsements being made
on the suit summons.
Thereafter the plaintiffs in all the suits, applied
for service of notice through substituted service by filing an
application under Order 5 Rule 20 CPC. The notices were
published in 'Sanjevani (¸ÀAeɪÁtÂ)' news paper which is an
evening paper. According to the appellant/defendant No.3
service of notice taken out by the plaintiffs by publishing
the notice in an evening news paper is an imperfect service
and therefore placing the appellant and other defendants
exparte before the Trial Court has caused serious prejudice
to the appellant/defendant No.3 and sought for allowing the
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appeals by setting aside the impugned exparte judgment by
permitting him to contest the matter before the Trial Court.
5.
Per
contra,
Sri.
B.Sharathkumar,
learned
counsel for the respondents supports the impugned
judgment stating that when the defendants were not served
with the notices, the Trial Court had no option but to permit
the plaintiffs in all these matters to serve the notice
through substituted service by allowing it to be published in
'Sanjevani (¸ÀAeɪÁtÂ)' news paper which has got wide
circulation and therefore, the Trial Court placing the
appellant/defendant No.3 and defendants as exparte is well
within the realm of law and sought for dismissal of the
appeals.
6.
Perused the materials on record in the light of
the rival contentions of the parties.
7.
No doubt, a plaintiff would be permitted to
serve the un-served defendants in a given case by resorting
to the powers vested in the Court by filing an application
under Order 5 Rule 20 CPC, by seeking substituted service.
If the Court is satisfied with the contents of the affidavit,
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that defendants are avoiding the service of summons or
there is no effective mode for service of summons other
than the substituted service, on the basis of the material on
record, the Court would permit the notice to the defendants
to be served through substituted service. One of the modes
of substituted service is taking paper publication. In the
case on hand, the publication has been done in 'Sanjevani
(¸ÀAeɪÁtÂ)' news paper, which is an evening paper.
8.
Whether a publication of the notice made in an
evening paper is a sufficient service or not is no longer
res-integra in view of the judgment of this Court reported in
ILR
2007
KAR
3912
rendered
in
the
case
of
Sri. Venkatesh Vs. Sri. P.Subbaiah and Another and
the relevant paragraph of the said decision is culled out
hereunder for ready reference:
"10. In this regard the Courts cannot be
oblivious of the fact that in several cases dubious
methods are also adapted in order to secure ex-
parte order and as such paper publication should
be ordered with due care and also after being
satisfied about the particular paper in which the
paper publication is sought to be taken out. Here I
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must add a word of caution that the Courts should
avoid permitting publication in all and sundry
newspapers for the mere asking since such request
is made only because it is cheaper to publish in
such paper irrespective of its readership. At this
juncture, it is appropriate to notice the contents of
Order V Rule 20(1A), which reads as
