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2022 Supreme(Online)(Kar) 43507
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WP No. 106001 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 06TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 106001 OF 2016 (GM-CPC)
BETWEEN:
1.
SHRI.MUTAYYA
S/O GURAYYA GURAYYANAVAR @ GURUMATH,
AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O. NANDAWADAGI,
TQ: HUNGUND, DIST: BAGALKOT.
PIN CODE: 587154
2.
GURUBASAYYA
S/O GURAYYA GURAYYANAVAR
@ GURUMATH, SINCE DECEASED BY HIS L.RS.
SMT.SHOBHA
W/O GURABASAYYA GURAYYANAVAR
@ GURUMATH, AGE: 42 YEARS,
OCC: HOUSEHOLD WORK,
R/O.. NANDAWADAGI,
TQ: HUNGUND, DIST: BAGALKOT.
PIN CODE: 587154
3.
SMT.MAHADEVI
W/O MALLAYYA GYANAPPAYYANAVAR,
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
MARATAGERI, TQ: HUNGUND,
DIST: BAGALKOT,
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WP No. 106001 of 2016
PIN CODE:587154
4.
SMT.SAVITRI
D/O GURABASAYYA GURUAYYANAVAR
@ GURUMATH, AGE: 30 YEARS,
OCC: HOUSEHOLD WORK,
R/O. NANDAWADAGI,
TQ: HUNGUND, DIST: BAGALKOT.
PIN CODE: 587154
5.
SHRI.NINGAYYA
S/O GURABASAYYA GURUAYYANAVAR
@ GURUMATH, AGE: 27 YEARS,
OCC: AGRICULTURE,
R/O. NANDAWADAGI,
TQ: HUNGUND, DIST: BAGALKOT.
PIN CODE: 587154
6.
KUM.SUJATA
D/O GURABASAYYA GURAYYANAVAR
@ GURUMATH,
AGE: 17 YEARS, OCC: HOUSEHOLD WORK,
R/O. NANDAWADAGI,
TQ: HUNGUND, DIST: BAGALKOT.
PIN CODE: 587154
7.
SHRI.GURAYYA
S/O GURABASAYYA GURAYYANAVAR
@ GURUMATH, AGE: 12 YEARS,
OCC: AGRICULTURE,
R/O. NANDAWADAGI,
TQ: HUNGUND, DIST: BAGALKOT.
PIN CODE: 587154
(NOTE SINCE THE PETITIONERS
NO.6 AND 7 ARE MINOR AND
REPRESENTED THROUGH THEIR
NATURAL GUARDIAN PETITIONER NO.2
HEREIN, THEY ARE MINORS AS
PER THE FDP NO.13/2013 FILED
BY THE PETITIONERS HEREIN,
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WP No. 106001 of 2016
BUT WRONGLY MENTIONED AS
MAJORS IN THE REGULAR APPEAL
FILED BY THE RESPONDENTS NO.1 TO 6.)
8.
SMT.GURUMALLAVVA
W/O GURAYYA GURAYYANAVAR
@ GURUMATH,
SINCE DECEASED BY HER LRS.
(ORIGINIAL PLAINTIFF NO.3)
APPELLANTS AND RESPONDENTS.
(RESP. NO.3)
SMT.HANAMAVVA
W/O BHIRAPPA KANNAPETE,
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O. NANDAWADAGI,
TQ: HUNGUND, DIST: BAGALKOT.
PIN CODE: 587154
9.
SMT.SHANTAVVA
W/O GYANAYYA GYANAPPAYYANAVAR,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O. MARATAGERI,
TQ HUNGUND, DIST: BAGALKOT.
PIN CODE: 587154
10. SMT.SUMANGALA
W/O SHIVAPPA PUJARI,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O. KUNCHANUR,
TQ: JAMAKHANDI,
DIST: BAGALKOT. PIN CODE: 587301.
…PETITIONERS
(BY SRI. SANJAY S KATAGERI, ADVOCATE)
AND:
MALLAYYA S/O GURAYYA GURAYYANAVAR
@ GURUMATH,
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WP No. 106001 of 2016
1.
SINCE DECEASED BY HIS L.RS.
LRS ARE ALREADY ON RECORD AS R2 TO R6 HEREIN.
SMT.MALLAMMA
W/O MALLAYYA GURAYYANAVAR
@ GURUMATH, AGE: 77 YEARS,
OCC HOUSEHOLD WORK,
R/O. NANDAWADAGI,
TQ: HUNGUND,
DIST: BAGALKOT
PIN CODE: 587154
2.
SMT.ARUNA W/O BALAYYA AMOGHIMATH,
AGE: 47 YEARS,
OCC: HOUSEHOLD WORK,
R/O. AMADIHAL,
TQ: LINGASGUR,
DIST: RAICHUR,
PIN CODE: 584129.
3.
KUMARSWAMI S/O OMALLAYYA GURUYYANAVAR
@ GURUMATH, AGE: 42 YEARS,
OCC: DRIVER,
R/O. NANDAWADAGI,
TQ: HUNGUND, DIST: BAGALKOT.
PIN CODE: 587154
4.
SMT.SHANTAYYA
S/O MALLAYYA GURAYYANAVAR
@ GURUMATH, AGE: 37 YEARS,
OCC: AGRICULTURE,
R/O. NANDAWADAGI,
TQ: HUNGUND, DIST: BAGALKOT.
PIN CODE: 587154
5.
SHIVAYYA S/O MALLAYYA GURAYYANAVAR
@ GURUMATH,
AGE: 34 YEARS, OCC: DRIVER,
R/O. NANDAWADAGI,
TQ: HUNGUND,
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WP No. 106001 of 2016
DIST: BAGALKOT.
PIN CODE: 587154
6.
SMT.KASTURI D/O MALLAYYA GURAYYANAVAR
@ GURUMATH, AGE: 32 YEARS,
OCC: HOUSEHOLD WORK,
R/O. NANDAWADAGI,
TQ: HUNGUND, DIST: BAGALKOT.
PIN CODE: 587154
7.
SMT.SAROJINI
W/O CHINNAYYA GURUVIN,
AGE 40 YEARS, OCC: HOUSEHOLD WORK,
R/O. GONAL, TQ: HUNGUND,
DIST: BAGALKOT.
NOW RESIDING AT BAZAR ROAD,
MUDDEBIHAL, DIST: VIJAYAPUR.
PIN CODE: 586212
…RESPONDENTS
(BY SRI. RAMESH I ZIRALI AND SRI.SHIVARAJ S BALLOLI,
ADVOCATE FOR R2 TO R6, SRI.A.B.PATIL, ADVOCATE FOR R7)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DATED:17.10.2015 PASSED ON I.A.NO.I AND II IN R.A.NO.83/2013
BY THE LEARNED II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BAGALKOT, AS PER ANNEXURE-J HEREIN AND THEREBY DISMISSING
THE SAID I.A.NO.I AND II AND CONSEQUENTLY DISMISS THE SAID
R.A.NO.83/2013 FILED BY THE RESPONDENTS NO.1TO 6 HEREIN, BY
ALLOWING THIS WRIT PETITION.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 106001 of 2016
The petitioners are before this Court seeking for the
following reliefs:
to quash the order dated:17.10.2015 passed on i.a.no.i and ii
in r.a.no.83/2013 by the learned ii additional district and
sessions judge, bagalkot, as per annexure-j herein and
thereby dismissing the said i.a.no.i and ii and consequently
dismiss the said r.a.no.83/2013 filed by the respondents
no.1to 6 herein, by allowing this writ petition.
The petitioners were the original plaintiff Nos.2 and
legal representatives of original plaintiff Nos.1, 3, 4
and defendant Nos.2 and 3. A suit for partition and
separate
possession
had
been
filed
in
O.S.No.103/1996
before
the
Prl.
Civil
Judge,
Bagalkot. In the said suit on the summons being
issued by way of registered post acknowledgement
due, the postal cover was returned with an
endorsement refused. Hence, defendant No.1 was
placed exparte and the matter proceeded for trial
and a decree passed. Subsequently, on final decree
proceedings being filed, the legal representatives of
defendant No.1 claiming that they came to know
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about the same at that time, filed a regular appeal in
R.A.No.83/2013 challenging the said decree.
The delay of 16 years 4 months in preferring the
appeal was condoned and the further proceedings in
the final decree proceedings were stayed vide order
dated 17.10.2015 which order has been impugned by
the petitioners herein who were the respondents
therein.
The First Appellate Court taking into account that the
evidence led by the appellants therein and the
documents which had been produced show that the
father of the appellants i.e. defendant No.1 in the
original suit was residing in Hirekumbi village in
Belagavi District as on 1994 as also taking into
account various other documents including LIC
premium receipt issued at the said address held that
there was no possibility of refusal of service of
summons and as such the aforesaid order came to
be passed.
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Sri.Sanjay S Katageri, learned counsel appearing for
the petitioners herein and the respondents therein
submits that the appeal and the grounds raised
therein are completely false and the said appeal
having been filed after a period of 16 years 4 months
the delay ought not to have been condoned. He
submits that defendant No.1 was in fact residing at
Nandawadagi at Hungund taluk and not residing at
Hirekumbi
village,
Belagavi
District.
The
endorsement which has been issued is that of refusal
and in terms of Section 27 of the General Clauses Act
the refusal is deemed service of a notice and the
appellants cannot take advantage of the refusal of a
notice to reopen the suit which has already been
decreed.
In this regard, he relies upon the decision of the
Hon’ble Apex Court in SLP Diary No.1855/2020 dated
29.09.2021 more particularly para No.19 thereof
which is reproduced hereunder:
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“19. The summons issued by registered post was received
back with postal endorsement of refusal, as would be clear
from the order dated 19.02.1997 Sub-Rule (5) of Order V
Rule 9 of the Code states inter alia that if the defendant or his
agent had refused to take delivery of the postal article
containing the summons, the court issuing the summons shall
declare that the summons had been duly served on the
defendant. The order dated 19.02.1997 was thus completely
in conformity with the legal requirements. In a slightly
different context, while considering the effect of Section 27 of
the General Clauses Act, 1897 a Bench of three Judges of this
Court in C.c. Alavi Haji vs. Palapetty Muhammed and Another
made following observations:-
“14. Section 27 gives rise to a presumption that
service of notice has been effected when it is sent to the
correct address by registered post. In view of the said
presumption, when stating that a notice has been sent by
registered post to the address of the drawer, it is unnecessary
to further aver in the complaint that in spite of the return of
the notice unserved, it is deemed to have been served or that
the addressee is d
