Karnataka High Court
Magdaline Dias vs Caroline Lasrado on 20 March, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
-1-
NC: 2025:KHC:11675
RSA No. 71 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO.71 OF 2014 (INJ)
BETWEEN:
1. MAGDALINE DIAS
W/O LOUIS DIAS
AGED ABOUT 81 YEARS
2. MAXIE DIAS
S/O LOUIS DIAS
AGED ABOUT 55 YEARS
3. MARY ALMAN
D/O LOUIS DIAS
AGED ABOUT 52 YEARS
4. VINCENT DIAS
S/O LOUIS DIAS
AGED ABOUT 50 YEARS
5. NORA DIAS
D/O LOUIS DIAS
AGED ABOUT 48 YEARS
ALL ARE REP. BY THEIR GPA HOLDER
Digitally signed by MAXIE DIAS, APPELLANT NO.2
GEETHAKUMARI ALL ARE R/A SOORIKUMERU HOUSE
PARLATTAYA S
MANI VILLAGE, BANTWAL TALUK,
Location: High MANGALORE 574 211.
Court of Karnataka REPRESENTED BY THEIR GPA HOLDER
MAXIE DIAS, APPELLANT NO.2
...APPELLANTS
[BY SRI VYSHAK P.N., ADVOCATE FOR
SRI BHARGAVA D. BHAT, ADVOCATE FOR A1 TO A5 (PH)]
AND:
1. CAROLINE LASRADO
W/O VALERIAN LASRADO
AGED ABOUT 45 YEARS
R/AT SOORIKUMERU HOUSE
MANI VILLAGE, BANTWAL TALUK - 574 211.
-2-
NC: 2025:KHC:11675
RSA No. 71 of 2014
2. VALERIAN LASRADO
S/O BENJAMINE LASRADO
AGED ABOUT 52 YEARS
R/AT SOORIKUMERU HOUSE
MANI VILLAGE, BANTWAL TALUK 574 211.
...RESPONDENTS
[BY SRI PRASANNA V.R., ADVOCATE FOR R1 & R2 (PH)]
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DATED 18.4.2013 PASSED IN R.A.NO.5/2012
ON THE FILE OF THE SR. CIVIL JUDGE & JMFC., BANTWAL, D.K,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND
DECREE DTD 27.1.2012 PASSED IN OS.NO.90/1999 ON THE FILE OF
THE PRL. CIVIL JUDGE & JMFC., BANTWAL, D.K.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 18.04.2013
passed by Senior Civil Judge and J.M.F.C., Bantwal, D.K.,
('First Appellate Court' for short) in R.A.no.5/2012, this
appeal is filed.
2. Brief facts of case as stated are that appellants
herein were plaintiffs in O.S.no.90/1999 filed for eviction of
defendants from plaint 'A' schedule property. In view of nature
of substantial question of law urged and addressed, detailed
reference to pleadings and deposition etc., would not be
necessary. Only facts as would be necessary for disposal of this
appeal are stated.
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3. Suffice it to state that on appearance, suit was
contested, issues were framed, evidence recorded and trial
Court decreed suit by judgment and decree dated 27.01.2012
directing defendants to surrender 'B' schedule property within
three months and restraining them from interfering with
plaintiffs' possession over same.
4. Assailing said judgment and decree, defendants
filed R.A.no.5/2012 on various grounds. Based on contentions,
first appellate Court framed points for consideration.
5. On consideration, it allowed appeal by setting aside
judgment and decree passed by trial Court and dismissed suit.
Aggrieved thereby, plaintiffs had preferred this second appeal.
6. Sri Vyshak P.N., advocate appearing for
Sri Bhargava D. Bhat, learned counsel for plaintiffs submitted,
main ground urged against impugned judgment and decree
passed by first appellate Court was denial of opportunity
consequent to error of procedure while allowing I.A-III for
substituted service without attempting service in normal course
and even though appellants were residents of Mumbai
permitting paper publication in newspaper circulated in
Mangaluru.
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7. Elaborating same, it was submitted, R.A.no.5/2012
was filed on 21.02.2012, summons was ordered on
23.02.2012. Order-sheet on next date contains registry note
based on report of process server about respondents being
residents of Mumbai. On 25.06.2012, I.A-III was filed under
Order V Rule 20 of Code of Civil Procedure, 1908 ('CPC' for
short) for substituted service by paper publication. Same was
allowed without reasons and verifying necessary requirements.
Therefore, substantial question of law about judgment and
decree passed by first appellate Court being in violation of
principles of natural justice arose for consideration. On said
ground seeks to allow appeal.
8. In support of submissions, learned counsel for
appellants relied upon decisions in Neerja Realtors Private
Limited v. Janglu (Dead) Through Legal Representative,
reported in 2018 (2) SCC 649; Great Punjab Agro
Industries Ltd. v. Khushian and Ors., reported in 2005
(13) SCC 503 and in M. Lakshmi Shetty and Anr. v.
Karnataka State Financial Corporation, Bengaluru,
reported in 2018 SCC OnLine Kar 4712.
9. Sri Prasanna V.R., learned counsel appearing for
respondent no.1 countered submission by relying upon decision
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of this Court in Kyhrunnissa v. Shabbeer Ahmed, reported in
2003 (2) KCCR 1503 to contend that if grievance of
appellants were against ex-parte decree, they ought to have
availed remedy under Order XLI Rule 21 of CPC or under Order
IX Rule 13 of CPC for setting aside of ex-parte decree instead
of preferring appeal. It was submitted, though appellants
contended that they were residing at Mumbai and therefore
taking out paper publication in Mangaluru would not be
justified. It was submitted that appellants were represented by
their Power of Attorney Holder before trial Court, who was
resident of Mangaluru and therefore, there was no error of
procedure and sought dismissal of appeal.
10. Heard learned counsel, perused impugned
judgment and decree and record.
11. Matter was heard and taken up for final disposal
with consent of learned counsel on following substantial
question of law.
"Whether judgment and decree by first
appellate Court suffers for violation of
principles of natural justice for allowing I.A-III
filed under Order V Rule 20 of CPC without
recording satisfaction about requirements?"
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12. This appeal is by plaintiffs being aggrieved by
judgment and decree passed by first appellate Court allowing
appeal and setting aside judgment and decree passed by trial
Court and dismissing suit for eviction.
13. In view of substantial question of law involved, it
would be necessary to refer records of first appellate Court in
R.A.no.5/2012. On 23.02.2012, summons was issued,
returnable by 02.04.2012. On 02.04.2012, it was noted that
summons returned with shara of process server that when
service of notice was attempted to be served at address
mentioned, addressees were not found. On enquiry, neighbors
informed that they were permanently residing in Mumbai. Same
is also noted in order-sheet on 02.04.2012. On next dates of
hearing i.e. 21.05.2012, 29.05.2012 there was no progress. On
25.06.2012, I.A-III was filed under Order V Rule 20 of CPC for
substituted service by paper publication which was allowed by
following order:
"Appln. u/O 5 R 20 CPC filed by the Appellant. IA-
III is allowed and the appellant is permitted to take
notice to the Resps. through Sub-service by way of
paper publication.
To furnish Draft by 2-7-12."
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14. Perusal of affidavit filed in support of I.A-III would
reveal averments.
"3. I say that the Respondents are not residing in the
suit schedule property. I say the where about and their
residential addresses are not known to us. I say hence
it is not possible to serve the appeal notice to them in
the ordinary course. I say hence I have filed the
annexed I.A., praying to cause notice of the appeal to
them by publication in the daily news paper as detailed
in the I.A."
15. Hon'ble Supreme Court in Neerja's case (supra)
has held an order mechanically allowing application filed under
Order V Rule 20 of CPC would be contrary to law. Court
considering application would be required to consciously apply
its mind and recording its satisfaction that defendant was
keeping away and avoiding service and could not be served in
ordinary manner, for any reasons. It also noted that trial Court
therein had not sent summons to defendants at address
furnished by registered post with acknowledgement. It held
procedural violation vitiated order and allowed appeal. In
instant case, there is neither assertion about evasion of service
nor reason assigned for allowing I.A-III. Therefore, impugned
order insofar as allowing I.A-III under Order V Rule 20 of CPC
by first appellate Court and placing respondents ex-parte,
would be contrary to law.
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16. Insofar as contention about requirement of
appellants to have avail them remedy under Order IX Rule 13
of CPC or under Order XLI Rule 21 of CPC, this Court in
RSA.no.364/2013 disposed of on 06.01.2025 specifically dealt
with scope of Order IX Rule 13 vis-à-vis an appeal and held
there is no water tight division and appeal would be
maintainable questioning order placing ex-parte if no
application were filed under Order IX Rule 13 of CPC by
referring to decision of Hon'ble Supreme Court in GNR Babu @
SN Babu v. Dr.BC Mutappa and Ors., reported in AIR 2022
SC 4213 and Bhanu Kumar Jain v. Archana Kumar and
Anr., reported in 2005 (9) SCC 787. Admittedly, it is not
urged by respondents that appellants had availed remedy
under Order IX Rule 13 of CPC. Therefore, they would be
entitled to challenge order passed by first appellate Court both
on ground of violation of principles of natural justice as well as
on merits.
17. In view of above, substantial question of law is
answered in affirmative. Impugned judgment and decree
passed by first appellate Court is set aside only on ground of
violation of principles of natural justice. First Appellate Court
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would require to decide appeal afresh in accordance with law.
Consequently, following:
ORDER
i. Appeal is allowed, judgment and decree dated
18.04.2013 passed by Senior Civil Judge and
J.M.F.C., Bantwal, D.K., in R.A.no.5/2012 is set
aside.
ii. Parties to appear before first appellate Court on
02.06.2025 without awaiting fresh notice.
iii. First Appellate Court shall thereafter hear
parties and pass appropriate judgment on
merits.
iv. It is clarified that all contentions of both parties
are kept open.
v. Registry to draw decree accordingly and
transmit Trial Court Records to first appellate
Court well before 02.06.2025.
Sd/-
(RAVI V HOSMANI)
JUDGE
GRD
