Sri B L Keshavamurthy Vs Sri Syed Basheer Malik

¶1

HC-KAR NC: 2026:KHC:37865 W.P. No.17359/2021

¶2

1 -

¶3

CNR: KAHC010349652021

¶4

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF JULY, 2026 BEFORE

¶5

THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.17359/2021 (GM-CPC)

¶6

BETWEEN:

¶7

SRI. B.L. KESHAVAMURTHY AGED ABOUT 83 YEARS S/O B.V. LAKSHMAIAH RESIDING AT 201 GR PEARL APARTMENTS CHUNCHAGATTA MAIN ROAD JP NAGAR 7TH PHASE BANGALORE-560078.

¶8

…PETITIONER

¶9

(BY SRI. PRATEEK RATH, ADV.,)

¶10

AND:

¶11

Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

¶12

SRI. SYED BASHEER MALIK S/O LATE ALHAJ S.A. MALIK AGED ABOUT 72 YEARS R/AT 7-O, SHANGNASCY ROAD LANGFORD GARDEN BENGALURU-560025.

¶13

SRI. RAJIV MAJOR IN AGE S/O LATE B.L. SRINIVASAMURTHY.

¶14

SRI. ANITHA KUMARI D/O LATE B.L. SRINIVASAMURTHY AGED ABOUT 57 YEARS.

¶15

2 -

¶16

HC-KAR

¶17

NC: 2026:KHC:37865 W.P. No.17359/2021

¶18

CNR: KAHC010349652021

¶19

R2 TO R3 ARE R/ AT NO.713 10TH A MAIN, 4TH BLOCK JAYANAGAR, BENGALURU-560027.

¶20

SMT. LALITHA W/O B.L. KESHAVAMURTHY AGED ABOUT 60 YEARS RESIDING AT GR PEARL APT. 201 CHUNCHAGATTA MAIN ROAD JP NAGR 7TH PHASE BANGALORE-560062.

¶21

SRI. DHRUTHI .V AGED ABOUT 47 YEARS S/O B.L. VASUDEVAMURTHY R/AT TAMPA, USA PERMANENT ADDRESS NO.19, NANJAPPA ROAD SHANTINAGAR BENGALURU 560027 REP. BY POWER OF ATTORNEY HOLDER B.L.VASUDEVAMURTHY.

¶22

SRI. DAKSHA .V S/O B.L. VASUDEVAMURTHY AGED ABOUT 39 YEARS RESIDING AT SOBHA DEWFLOWER 4TH CROSS, SARAKKI NAGAR JP NAGAR 1ST PHASE BENGALURU-560078.

¶23

M/S. NOOR AUTO GARAGE NO.57, 6TH CROSS SIDDAIAH ROAD BENGALURU PROP. LATE H. NAZEER AHMED.

¶24

SMT. HOORUNNISA MAJOR W/O LATE H. NAZEER AHMED.

¶25

3 -

¶26

HC-KAR

¶27

NC: 2026:KHC:37865 W.P. No.17359/2021

¶28

CNR: KAHC010349652021

¶29

SRI. SADIQ MAJOR

¶30

S/O LATE H. NAZEER AHMED.

¶31

SMT. TABASSUM MAJOR D/O LATE H. NAZEER AHMED.

¶32

SMT. TARANNUM MAJOR D/O LATE H. NAZEER AHMED.

¶33

SRI. UMME SALMA MAJOR D/O LATE H. NAZEER AHMED.

¶34

MISS. MUBASEERA SULTANA @ BABY MAJOR D/O LATE H. NAZEER AHMED.

¶35

R8 TO R13 ARE RESIDING AT NO.1/27 1ST FLOOR, AYAPPA GARDEN, 1ST CROSS BANNERGHATTA ROAD MICO GATE, BENGALURU-560030.

¶36

SRI. NITIN P. KATARIA S/O PRAKASH KUMAR KATARIA AGED ABOUT 35 YEARS R/AT NO.1/3, 4TH FLOOR U.P.SHELTER, GOVINDAPPA STREET 1ST MAIN, SHESHADRIPURAM BENGALURU - 560 020.

¶37

…RESPONDENTS

¶38

(BY SRI. H.R. ANANTHAKRISHNA MURTHY, ADV., FOR R1 V/O/DTD:04.10.2021, NOTICE TO R2 TO R14 STANDS WAIVED)

¶39

4 -

¶40

HC-KAR

¶41

NC: 2026:KHC:37865 W.P. No.17359/2021

¶42

CNR: KAHC010349652021

¶43

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 9^TH APRIL 2021 PASSED BY THE LEARNED XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH 36) IN O.S.NO.8701/2011 (I.E, ANNEXURE-A) ON I.A.NO.16 AS BEING VIOLATIVE OF ARTICLES 14 AND 21 OF THE CONSTITUTION OF INDIA & ETC.

¶44

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶45

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

¶46

ORAL ORDER

¶47

This writ petition is filed seeking the following reliefs:

¶48

“a). Issue a writ of certiorari or any other writ or direction or order quashing the order dated 9 April 2021 passed by the learned XXXV Additional City Civil and Sessions Judge (CCH-36) in O.S.No.8701/2011 (i.e., Annexure-A) on IA No.16 as being violative of Articles 14 and 21 of the Constitution of India.

¶49

b). Consequently allow I.A.No.16 filed by the petitioner under O 9 R 7 r/w S.151 of the CPC in OS 8701/2011 on the file of the XXXV Additional City Civil and Sessions Judge (CCH 36) by setting aside the order placing petitioner as being ex parte and

¶50

5 -

¶51

HC-KAR

¶52

NC: 2026:KHC:37865 W.P. No.17359/2021

¶53

CNR: KAHC010349652021

¶54

permit the petitioner to contest the case on merits”.

¶55

Heard Sri.Prateek Rath, learned counsel for the

¶56

petitioner and Sri.H.R.Ananthakrishnamurthy, learned

¶57

counsel for the respondent No.1.

¶58

The respondent No.1 filed a suit in O.S.No.8701/2011 seeking to set aside the judgment and decree passed in O.S.No.8326/2007 by the Additional City Civil Judge, Bengaluru, dated 03.08.2009 and for other reliefs. In the said suit, the petitioner herein was arrayed as a defendant No.3. The Trial Court placed the defendant No.3 ex parte on 09.10.2013. The said order was sought to be set aside in the application filed by the petitioner in I.A.No.16 under Order IX Rule 7 read with Section 151 of

¶59

the Code of Civil Procedure, 1908 (for short, ‘the CPC’). The Trial Court, under the impugned order rejected the application with cost of Rs.3,000/- by recording the reason

¶60

that as per paragraph 3 of the affidavit supporting the application, the applicant had knowledge about the receipt

¶61

6 - NC: 2026:KHC:37865 W.P. No.17359/2021

¶62

HC-KAR

¶63

CNR: KAHC010349652021

¶64

of the summons. It is required to be noticed that the Trial

¶65

Court, on 25.04.2013 observed that the suit summons issued to the defendant Nos.1, 2, 6, 7, 9 to 14 are duly served and that defendant Nos.3, 4, 5 and 8 have left the address. Order dated 02.07.2013 of the Trial Court indicates that the defendant Nos.1, 2, 6 and 7 were represented by a counsel, defendant Nos.9 to 14 were placed ex parte and it was observed that the summons issued through RPAD to the defendant Nos.3 to 5 and 8 returned as no such person in the address. The aforesaid two orders make it very clear that the petitioner who was the defendant No.3 in the suit was not residing in the address shown in the cause title of the plaint and the suit summons was not served.

¶66

Be that as it may, the plaintiff filed an application under Order V Rule 20(1)(a) of the CPC, seeking to serve the suit summons on the defendant Nos.3 to 5 and 8 by way of substituted service by publishing the

¶67

7 -

¶68

HC-KAR

¶69

NC: 2026:KHC:37865 W.P. No.17359/2021

¶70

CNR: KAHC010349652021

¶71

summons in the English daily 'The Hindu' and the said application was considered by the Trial Court by recording the submission of the plaintiff that it is very difficult to serve the suit summons on the defendants in ordinary course and considering the same, the application was allowed and the plaintiff was permitted to serve the suit summons on the defendant Nos.3 to 5 and 8 by way of substituted service through paper publication as prayed in the application. The said order is dated 01.08.2013. It is required to be noticed that the Trial Court, on 09.10.2013 passed the following order:

¶72

"Defendant Nos.3 to 5 and 8 called out. No representations made out. Suit summons served by paper publication service held as proper and they are placed ex-parte. For hearing call on 07/11."

¶73

It is further required to be noticed that on 25.02.2019, the order sheet indicates that the defendant No.7 reports that the defendant No.5 has died on 15.11.2018. Interestingly, on 11.04.2019, the learned

¶74

8 - NC: 2026:KHC:37865 W.P. No.17359/2021

¶75

HC-KAR

¶76

CNR: KAHC010349652021

¶77

counsel for the plaintiff filed a memo stating that the defendant No.5 has died as a bachelor leaving behind his parents who are the defendant Nos.3 and 4. The said memo was accepted and the defendant Nos.3 and 4 were treated as legal representatives of the deceased defendant No.5. At this stage, it is required to be observed that the Trial Court has failed to take note of the fact that the defendant Nos.3 and 4 are the parents of the deceased defendant No.5 who were already placed ex parte by the Trial Court on 09.10.2013 and treating the defendant Nos.3 and 4 as the legal representatives of the deceased defendant No.5 is again without notice to the defendant Nos.3 and 4.

¶78

The defendant No.3, on noticing that he has placed ex parte , filed an application under Order IX Rule 7 read with Section 151 of the CPC, seeking to set aside the ex parte order and the Trial Court mechanically rejected the said application by observing that the defendant No.3

¶79

9 - NC: 2026:KHC:37865 W.P. No.17359/2021

¶80

HC-KAR

¶81

CNR: KAHC010349652021

¶82

has stated in paragraph 3 of the affidavit that on receipt of the summons of the Court, his family had moved out from the address. It is required to be noticed that though the said statement in the affidavit gives an impression that there was receipt of summons by the defendant No.3, however, the order sheet of the Trial Court clearly shows that the defendant Nos.3 and 4 have left the address shown in the cause title of the plaint long back and the summons was never served on them. It is also required to be noticed at this stage that the Trial Court, while allowing an application for substituted service of the defendant Nos.3 and 4, has not taken note of the earlier orders dated 25.04.2013 and 02.07.2013 wherein the order sheet clearly indicates that the aforesaid defendants i.e. defendant Nos.3 and 4 left the address and proceeded to allow the application. The Trial Court would not have entertained the application of the plaintiff seeking for substituted service unless the plaintiff makes an attempt

¶83

to serve the summons to the correct address of the

¶84

10 -

¶85

HC-KAR

¶86

NC: 2026:KHC:37865 W.P. No.17359/2021

¶87

CNR: KAHC010349652021

¶88

defendant No.3 and 4. Taking note of the orders passed by the Trial Court referred supra , I am of the considered view that the Trial Court has committed a grave error in placing the defendant No.3 ex parte and later holding that service of summons by substituted service without taking note of the earlier orders passed by the Trial Court, is erroneous and calls for interference. Hence, I proceed to pass the following:

¶89

ORDER

¶90

(i) The writ petition is allowed.

¶91

(ii) The impugned order dated 09.04.2021 passed in O.S.No.8701/2011 by the XXXV Additional City Civil and Sessions Judge, Bengaluru, is set aside. Consequently, IA No. 16 filed by the defendant No.3 under Order IX Rule 7 read with Section 151 of the CPC, is allowed.

¶92