H S Ravi vs H N Siddegowda
2022 Latest Caselaw 9394 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF JUNE 2022

                       BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

     WRIT PETITION NO.11145 OF 2018 (GM-CPC)

BETWEEN:
       H.S. RAVI,
       S/O SIDDEGOWDA,
       AGED ABOUT 44 YEARS,
       R/O BOOTHANAHOSURU VILLAGE,
       KOTHATHI HOBLI,
       MANDYA TALUK AND DISTRICT - 571 401.
                                        ...PETITIONER
(BY SRI. VIVEKANANDA T.P., ADVOCATE)

AND:
1.     H.N. SIDDEGOWDA,
       S/O LATE NINGEGOWDA,
       AGED ABOUT 73 YEARS,

2.     SMT. GOWRAMMA,
       W/O H.N. SIDDEGOWDA,
       AGED ABOUT 67 YEARS,

       BOTH ARE RESIDENTS OF
       BEDAGARAHALLI VILLAGE,
       KOPPA HOBLI,
       MADDUR TALUK AND DISTRICT - 571 419.
                                       ...RESPONDENTS
(RESPONDENTS - SERVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 09.11.2017 IN M.A.NO.2/2013 PASSED
                                  2
BY THE FIRST ADDL. SR. CIVIL JUDGE AND MACT AT
MANDYA AT ANNEX-D AND ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                            ORDER

The petitioner aggrieved by the order dated

09.11.2017 passed in M.A.No.2/2013 by the

I Additional Senior Civil Judge and MACT, Mandya, has

filed this writ petition.

2. Brief facts leading rise to filing of this

petition are as under:

The petitioner filed a suit in O.S.No.337/2008 for

declaration and consequential reliefs. The Trial Court

issued summons to the respondents. Inspite of service

of summons, respondents remained absent and the

Trial Court placed the respondents as ex-parte and

proceeded to record the evidence of the petitioner and

consequently decreed the suit of the petitioner. The

respondents filed an application for setting aside the

ex-parte judgment and decree dated 06.03.2009 in

Misc.Petition.No.15/2009. The Trial Court issued

notice to the petitioner. The petitioner appeared and

filed objection to the application. The Trial Court

recorded the evidence of the parties and dismissed

the petition filed by the respondents vide order dated

05.01.2013. The respondents aggrieved by the same

preferred an appeal in M.A.No.2/2013. The Appellate

Court, after considering the material on record,

allowed the appeal and set aside the judgment and

decree passed by the Trial Court and consequently

restored the suit. The petitioner aggrieved by the said

order has filed this writ petition.

     3.       Heard   the   learned      counsel      for   the

petitioner.

4. Learned counsel for the petitioner submits

that inspite of service of summons, respondents have

failed to appear before the Trial Court. He further

submits that the Trial Court, after considering the

material on record, was justified in rejecting the

application filed by the respondents. He further

submits that the Appellate Court without considering

the contention of the petitioner has passed the

impugned order. He further submits that the

impugned order passed by the Appellate Court is

arbitrary and erroneous. Hence, on these grounds, he

prays to allow the writ petition.

5. Perused the records and considered the

submissions of the learned counsel for the petitioner.

6. It is not in dispute that the petitioner filed

a suit in O.S.No.337/2008 before the Trial Court. The

Trial Court issued summons to the respondents.

The summons was returned with an endorsement

stating that respondents were not residing in the

Bhoothanahosuru Village since from many years and

process server returned the summons to the Court.

The petitioner has taken out a fresh steps through

RPAD and substitute service. From the perusal of the

endorsement it clearly discloses that the respondents

were not residing at the address shown in the plaint

at the time of issuance of summons to the

respondents. The petitioner ought to have been taken

a steps to the respondents where the respondents

were residing as on the date of filing of suit.

7. From the perusal of the records that the

summons was not served on the respondents,

because of non-service of summons, the respondents

could not participate in the proceedings. The Appellate

Court, considering the material on record, was

justified in setting aside the order passed by the Trial

Court and was rightly restored the suit. I do not find

any grounds to interfere with the impugned order.

Accordingly, writ petition is dismissed.

SD/-

JUDGE

GRD