[Cites 1, Cited by 0]

Karnataka High Court

Sri P Sriram vs Sri N Maruthi on 6 April, 2026

                                            -1-
                                                       WP No. 12036 of 2025



                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 6TH DAY OF APRIL, 2026

                                          BEFORE

                          THE HON'BLE MR. JUSTICE K. V. ARAVIND

                        WRIT PETITION No. 12036 OF 2025 (GM-CPC)

                 BETWEEN:

                 1.    SRI P SRIRAM,
                       S/O. FAKIRAPPA,
                       AGED ABOUT 50 YEARS,
                       R/AT No.58/A, CHIKKABANAVARA,
                       YESHWANTHAPURA HOBLI,
                       BANGALORE NORTH TALUK.
                                                               ...PETITIONER
                 (BY SRI NARASIMHARAJU, ADVOCATE)

                 AND:

                 1.    SRI N. MARUTHI,
                       S/O. LATE NARASIMHAIAH,
                       AGED ABOUT 44 YEARS,
                       R/AT CHIKKABANAVARA VILLAGE,
                       OLD PANCHAYATH ROAD,
Digitally
signed by              CHIKKABANAVARA POST,
VINUTHA B S            HESARAGHATTA MAIN ROAD,
Location: High         BANGALORE - 560090.
Court of
Karnataka
                 2.    SRI T. PUTTAIAH,
                       S/O. LATE PAPANNA,
                       AGED ABOUT 80 YEARS,
                       R/AT CHIKKABANAVARA VILLAGE
                       BEHIND BASAVA TEMPLE,
                       CHIKKABANAWARA POST,
                       HESARAGHATTA MAIN ROAD,
                       BANGALORE - 560090.
                                                            ...RESPONDENTS

(BY SRI SHIVA KUMAR D. A., ADVOCATE FOR R1 & R2)

THIS WRIT PITITION IS FILED UNDER ARTICELS 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED IN M.A.No.55/2018 BY THE II ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT BENGALURU AS PER ANNEXURE-B AND CONSEQUENTLY ALLOW MA No. 55/2018 ETC.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM:        HON'BLE MR. JUSTICE K. V. ARAVIND

                             C.A.V. JUDGMENT

      Heard      Sri    Narasimharaju,       learned   counsel     for    the

petitioner,    and     Sri    D.A.   Shiva    Kumar,     learned   counsel

appearing for respondent No.1.

2. Defendant No.2 in O.S. No.548/2009 is before this

Court, impugning the order dated 25.04.2018 passed in Misc.

No.3/2011 by the I Additional Civil Judge, Bengaluru Rural

District, Bengaluru (for short, "trial Court"), as well as the order

dated 27.04.2024 passed in M.A. No.55/2018 by the II

Additional Senior Civil Judge, Bengaluru Rural District,

Bengaluru (for short, "appellate Court").

2.1 The applicants in Misc. No.3/2011 and M.A.

No.55/2018 are defendant Nos.2 and 3 in O.S. No.548/2009.

The present writ petition is filed only by defendant No.2. The

trial Court issued summons to the petitioner. As the summons

could not be served, notice appears to have been issued

through RPAD, which was returned unserved. Thereafter, the

trial Court allowed the application for substituted service by

way of paper publication. The petitioner did not appear before

the trial Court. Consequently, the trial Court held the service to

be sufficient and placed defendant Nos.2 and 3 ex parte.

Thereafter, the trial Court proceeded to pass the judgment and

decree dated 25.01.2011.

2.2 Both defendant Nos.2 and 3 filed an application

under Order IX Rule 13 of the CPC seeking to set aside the

ex parte judgment and decree. The trial Court rejected the said

application by order dated 25.04.2018. Aggrieved by the

same, a Miscellaneous Appeal under Order XLIII Rule 1(r) of

the CPC was filed. The said appeal also came to be dismissed

by order dated 27.04.2024. Though the impugned orders were

passed at the instance of defendant Nos.2 and 3, only

defendant No.2 has chosen to challenge the said orders.

3. Sri Narasimharaju, learned counsel appearing for

the petitioner, submits that though respondent No.1 and the

petitioner hail from the same village, the suit was presented

with an insufficient address so as to avoid service of notice. It

is contended that the summons issued was returned with an

endorsement stating that the addressee was not residing at the

given premises. It is further submitted that the notice issued

through RPAD was returned with the postal shara "insufficient

address." It is contended that service of notice through paper

publication is permissible only when service is deliberately

avoided. In the present case, in the absence of a sufficient

address, non-service cannot be construed as avoidance of

service so as to justify substituted service by way of paper

publication.

3.1 Learned counsel further submits that the trial Court,

by incorrectly appreciating the evidence of the petitioner,

concluded that no ground was made out to set aside the

ex parte judgment and decree. It is contended that the

appellate Court has also committed a similar error. It is further

submitted that the petitioner has title and interest in the suit

schedule property, and the decree has been passed without

affording him an opportunity to defend his rights. On these

grounds, learned counsel prays that the ex parte judgment and

decree be set aside and the matter be remitted for fresh

consideration, subject to such conditions as may be imposed by

this Court.

4. Sri D.A. Shiva Kumar, learned counsel appearing for

respondent No.1, submits that the plaintiff in the suit had

furnished the correct address of the petitioner. It is contended

that the Court summons, as well as the notice sent through

RPAD, were deliberately avoided by the petitioner. It is further

submitted that the trial Court, upon being satisfied that there

was evasion of service, permitted substituted service by way of

paper publication and held the service to be sufficient. Learned

counsel contends that notice was attempted through all

recognised modes of service.

4.1 It is also submitted that the petitioner had

knowledge of the proceedings and, despite such knowledge,

chose not to participate in the suit. It is contended that only

after the suit was decreed, the present applications were filed

seeking to set aside the ex parte judgment and decree, with an

intention to delay the proceedings and to harass respondent

No.1.

5. Having considered the submissions made by the

learned counsel for the parties, this Court is not inclined to

entertain the writ petition for the following reasons:

5.1 The address of the petitioner furnished in the

present petition and in the plaint is the same, except for a

variation in the door number. The summons issued was

returned with an endorsement stating that "defendant No.2 is

not residing at the given address." Though a copy of the

summons and the endorsement pertaining to defendant

No.2/petitioner is not placed on record, it is submitted that a

similar endorsement was made. Likewise, the notice issued

through RPAD was returned with the postal shara "insufficient

address." Thereafter, the trial Court entertained the application

for substituted service, and notice was published in a

newspaper having wide circulation in the locality. The trial

Court, being satisfied as to the sufficiency of service, proceeded

to place the petitioner ex parte.

5.2 In the course of consideration of the application,

evidence was recorded, wherein the petitioner (PW1) has

admitted that he had knowledge of the proceedings and had

intentionally not participated in the same. Both the Courts have

held that it is not the case of the petitioner that he was not

residing at the address mentioned. No evidence has been

produced to demonstrate that the petitioner was residing at

any address other than the one stated in the plaint. It is also

noteworthy that the address of the petitioner as mentioned in

the plaint and in the present petition is one and the same.

5.3 Be that as it may, even assuming for the sake of

argument that the address furnished was insufficient, service of

notice through paper publication is one of the recognised

modes of service. In the present case, notice was published in

a newspaper. There is no dispute with regard to the wide

circulation of the said newspaper in the locality where the

petitioner resides. Learned counsel for the petitioner has placed

reliance on the judgment of this Court reported in ILR 1999

KAR 932, in the case of Smt. Sitabai vs. Narayana Rao &

Others, to contend that, in the absence of notice being sent to

the correct address, mere service through paper publication

would not constitute sufficient service.

5.4 The said judgment has no application to the facts of

the present case. In the case relied upon, evidence was placed

on record to show that the addressee was residing at an

address different from the one mentioned in the plaint, and

therefore, the unserved notices could not be construed as

evasion of service. Such a factual matrix does not arise in the

present case. In the present case, the petitioner, who

examined himself as PW.1, has admitted as follows:

"rQæ «ZÁgÀ UÉÆvÁÛzÀ JµÀÄÖ ¢ªÀ¸ÀUÀ¼À £ÀAvÀgÀ F PÉÃ¸ÀÄ ºÁQ¢ÝgÀ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. ªÀÄÆ®zÁªÉAiÀÄ J¯Áè ¥ÉÆæ¹rAUïìUÀ¼ÀÄ UÉÆwÛzÀÝgÀÆ ¸ÀºÁ £ÁªÀÅ GzÉÝÃ±À ¥ÀÆªÀðPÀªÁV ºÁdgÁVgÀÄªÀÅ¢®è. £ÀAvÀgÀ F ¸ÀÄ¼ÀÄî PÉÃ¸À£ÀÄß ºÀÆrzÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è."

5.5 The petitioner, examined as PW.1, has further

admitted that the address mentioned in the plaint and in

Exs.P17 to P19, namely the summons, RPAD cover, and the

address notified in the newspaper publication, are one and the

same. The contention that there are about 5,000 houses in

Chikkabanavara village and that, in the absence of a house

number, identification of the noticee would be difficult, cannot

be accepted. The documents relied upon, namely the summons

and the RPAD cover, pertain to defendant No.3. Both the

Courts, upon appreciation of the evidence on record, the

admission made by PW.1, and having noticed that the address

mentioned in the plaint and the address furnished by the