Karnataka High Court
Smt Leela Sonegara vs Sri Kantilal P Jain on 4 July, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.10382 OF 2022 (GM-CPC)
BETWEEN:
1. SMT. LEELA SONEGARA
W/O LATE SHANTILAL SONEGARA
AGED ABOUT 65 YEARS
2. DEEPIKA GANDHI
D/O LATE SHANTILAL SONEGARA
AGED ABOUT 46 YEARS
3. NEETU SHAILESH JAIN
D/O LATE SHATILAL SONEGARA
AGED ABOUT 44 YEARS
4. REETU MAHENDRA JAIN
D/O LATE SHATILAL SONEGARA
AGED ABOUT 41 YEARS
5. KIRTHI BHANDARI
D/O LATE SHATILAL SONEGARA
AGED ABOUT 40 YEARS
6. KOMAL PALRECHA
D/O LATE SHATILAL SONEGARA
AGED ABOUT 36 YEARS
ALL R/O NO.156, SHEETAL
36TH CROSS, 5TH BLOCK JAYANAGAR
2
BENGALURU - 560041
...PETITIONERS
(BY SRI.SWAROOP ANAND R, ADVOCATE)
AND
SRI.KANTILAL P JAIN
PROPRIETOR OF M/S. PRAVESH THE BEST
S/O SRI.PHOOLCHANDJI
AGED ABOUT 60 YEARS
R/AT T1, 3RD FLOOR, NO.58
MANSION SURVEYORS STREET
BASAVANAGUDI, BENGALURU - 560004
CARRYING ON BUSINESS AT
GROUND FLOOR SHOP BEARING BBMP NO.10
SITUATED AT DEWAN SURAPPA LANE
O.T.C ROAD CROSS, CHICKPET
BENGALURU - 560053
[[
.....RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 22.04.2022 ON I.A.NO.3/2022 IN SC
NO.73/2022 PASSED BY HON'BLE IX ASCJ SMALL CAUSES
AND ADDL MACT, BENGALURU (SCCH-7) PRODUCED AT
ANNEXURE-A AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the
petitioners - landlord feeling aggrieved by the order
passed by the learned Judge on an application filed in
I.A.No.3 under the provisions of VI Rule 9(5) read
with Section 151 of CPC.,
2. The petitioners - plaintiffs have instituted a
ejectment suit in S.C.No.73/2022 against the
respondent - defendant. Before instituting the present
suit, the petitioners - plaintiffs herein has issued quit
notice calling upon the respondent - defendant to
hand over the vacant possession. The petitioners -
plaintiffs claimed that it is served on respondent -
defendant, who has issued reply notice from the same
address. Now, after institution of the suit, the
summons taken by the petitioners - plaintiffs by way
of RPAD is returned with postal shara "No such person
is living in the said address". It is in this background,
the present petitioner - landlord was compelled to file
an application under Order V Rule 9 of CPC requesting
the Court to hold that summons is duly served on
respondent - defendant and consequently, place
respondent - defendant as exparte. This application is
rejected by the learned Judge.
3. Questioning the reasons assigned by the
learned Judge, the learned counsel appearing for the
petitioner has placed reliance on the judgment
rendered by the Hon'ble Apex Court in the case of
VISHWABANDHU VS. KRISHNA AND OTHERS
reported in 2021(10)ADJ298. Referring to the
principles in the above cited judgments, he would
contend that the order under challenge is not at all
sustainable. The learned Judge has virtually lost sight
of the fact that respondent - defendant is evading
summons and is using all his unscrupulous tactics to
protract the hearing of the suit. Therefore, he would
contend that the reply notice issued from the very
same address and the fact that the present suit is one
for eviction, the Court ought to have invoked the
provisions under Order V Rule 9 of CPC. On these set
of grounds, he would contend that the order under
challenge is not at all sustainable and the same is
liable to be set-aside.
4. Heard learned counsel appearing for the
petitioners - plaintiffs. Perused the order under
challenge.
5. This Court is of the view that there is no need
to issue notice to the respondent - defendant. The
order under challenge is not at all sustainable. The
present petitioners - plaintiffs claim that he has issued
a quit notice to the respondent - defendant. The
petitioners specific case is that they are the owners of
the suit schedule premises and the petitioners
inducted the respondent - defendant in the schedule
property. The respondent - defendant is served with
legal notice and in the reply notice dated 10.01.2021,
it is indicated that he is residing in the suit schedule
property.
6. These facts are not examined by the learned
Judge. The petitioners - plaintiffs have also placed on
record the bill dated 12.05.2022 and the same
indicates that respondent - defendant is running a
cloth business in the suit schedule property. If the
prima-facie materials, which are placed on record by
the petitioners - plaintiffs are taken into consideration,
then this court is of the view that the learned Judge
was required to pass appropriate orders, which is not
done in the present case on hand. The principles laid
down by the Hon'ble Apex court are squarely
applicable to the present case on hand. The para
No.19 would be relevant and the same reads as
under;
"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 Anr. MANU/SC/2263/2007: AIR 2007
SC (Supp) 1705 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 deemed to have
knowledge of the notice. Unless and
until the contrary is proved by the
addressee, service of notice is
deemed to have been effected at the
time at which the letter would have
been delivered in the ordinary course
of business. This Court has already
held that when a notice is sent by
registered post and is returned with a
postal endorsement "refused" or "not
available in the house" or "house
locked" or "shop closed" or
"addressee not in station", due
service has to be presumed. [Vide
Jagdish Singh v. Natthu Singh
MANU/SC/0313/1992: AIR 1992 SC
1604: State of M.P. vs. Hiralal & Ors.
MANU/SC/1388/1996 : (1996) 7 SCC
523 and V. Raja Kumari v.
P.Subbarama Naidu & Anr.
MANU/SC/0937/2004 : (2004) 8 SCC
774)"
7. Therefore, in the light of the principles laid
down by the Hon'ble Apex Court in the above case,
thee learned Judge is required to pass fresh orders on
the application. It is in this background, the order
under challenge is not at all sustainable and the same
is liable to be set-aside. Hence, I pass the following;
ORDER
Writ Petition is allowed.
The order dated
22.04.2022 passed on
IA.No.3/2022 in SC No.73/2022
by the IX ASCJ, Small Causes
and Addl. MACT, Bengaluru
(SCCH-7) as per Annexure - A is
set-aside.
The learned Judge is
directed to re-hear the
application and pass orders by
taking note of the principles laid
down by the Hon'ble Apex court
in the above cited judgment.
Sd/-
JUDGE
NBM
