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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 10th DAY OF MARCH 2015

BEFORE

THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA

M.S.A. NO. 22/2012

BETWEEN:
K MOHANA MURTHY
S/O V KONDAPPA
AGED 58 YEARS
R/A III DIVISION, KATARIPALYA
KOLAR DISTRICT-563112.
... APPELLANT

(By Sri : K. SHRIHARI, ADV FOR

M/S LEX JUSTICIA, ADVS)

AND:

1. MUNIYAPPA
S/O MUNISWAMAPPA
AGED ABOUT 61 YEARS

2. K M MANJUNATH
S/O MUNIYAPPA
AGED ABOUT 30 YEARS

3. K M LOKESH
S/O MUNIYAPPA
AGED ABOUT 26 YEARS

ALL ARE RESIDING AT

KONDARAJANAHALLI VILLAGE
KASABA HOBLI, KOLAR TALUK-563116.
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... RESPONDENTS

(By Sri. R1 TO R3 ARE SERVED AND UNREPRESENTED)

MSA FILED U/S 104 R/W ORDER XLIII RULE 1(u)

OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED:17.1.2012 PASSED IN R.A.NO.113/2011 ON THE
FILE OF THE PRL. SENIOR CIVIL JUDGE & CJM, KOLAR,
ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 6.3.2009 PASSED IN
O.S.NO.848/2008 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN) KOLAR, REMANDING THE CASE TO
TRIAL COURT TO DISPOSE THE CASE.

THIS APPEAL HAVING BEEN HEARD AND

RESERVED FOR ORDERS COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
A.V.CHANDRASHEKARA, J., DELIVERED THE
FOLLOWING:

JUDGMENT

This is an appeal filed by the plaintiff of a case in

O.S.848/08 which was pending on the file of Principal Civil Judge

(Junior Divn.), Kolar.

2. Respondents 1 to 3 are defendants in the said suit. Parties

will be referred to as plaintiff and defendants as per their ranking

in the trial court.

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3. The 1st defendant is the father of defendants 2 and 3.

Plaintiff chose to file a suit for the relief of specific performance

based on an agreement of sale stated to have been executed by

defendants 1 to 3 on 21.8.2004, agreeing to sell the suit schedule

property for Rs.55,000/-. It is the case of the plaintiff that the

defendants and Muniyamma (wife of defendant no.1) had

received Rs.30,000/- as advance in the presence of witnesses who

have attested the agreement. They have agreed to receive the

balance of Rs.25,000/- and to execute regular sale deed. In spite

of several demands, defendants did not come forward and hence,

he got issued a legal notice on 10.12.2008.

4. It is alleged that Muniyamma-one of the executants, did

not receive the notice as she was dead. The others refused to

receive the notice and hence, notices were returned. Therefore

the plaintiff chose to file the suit for the relief of specific

performance before the trial court on 20.12.2008.

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5. The 3rd defendant-Lokesh is the son of the 1st defendant

and brother of 2nd defendant. He had received the summons for

himself and on behalf of his father and brother. This was held to

be sufficient service. The defendants did not appear before the

trial court. Hence the evidence of PW1 was recorded. Ultimately

the suit came to be decreed vide judgment dated 20.2.2009. It is

this judgment which was called in question by filing an appeal

under Section 96, C.P.C. in R.A.113/11 before the Principal

Senior Civil Judge and CJM, Kolar. The said appeal is allowed

and the matter is remanded to the trial court, holding that an

opportunity has to be given to the defendants to file written

statement and to contest the suit. A sum of Rs.500/- has been

imposed as cost vide judgment dated 17.1.2012. It is this

judgment and decree which is called in question in this appeal on

various grounds as set out on the appeal memo.

6. Heard the learned counsel for the appellant. The

respondents are duly served and unrepresented.

7. The learned judge of the first appellate court has exercised

discretion to remit the matter to the trial court on the ground that
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summons received by the 3rd defendant-Lokesh, at the best, could

be considered as valid service so far as Lokesh is concerned, and it

cannot e considered as valid service insofar as other defendants

are concerned. It is contended that though Lokesh is the son of

the 1st defendant and brother of the 2nd defendant, ther is nothing

on record to show that there was no likelihood of defendants 1

and 2 returning home at the earliest.

8. Reliance has been placed upon the decision rendered in

the case of SURESH KUMAR .v. SMT. GODAVARIBAI

(AIR 1992 MADHYA PRADESH 205) Relying on the

explanation found in Rule 15 of Order V, C.P.C., it is held that all

the three conditions must exist to hold that service on the adult

member of the family in respect of others to be valid service. As

could be seen from the summons served to Lokesh, though there

is a reference about receipt of summons on his behalf and on

behalf of his brother and father, there is no report of the process

server that there was no likelihood of defendants 1 and 2

returning home at the earliest, and therefore, summons was

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served on the 3rd defendant. The three conditions which are

relevant to hold valid service under Order V, C.P.C. are:

i) that the defendant must be absent from his

residence at the time when summons was sought
to be effected at his residence;

ii) that there was no likelihood of him being

found at the residence within a reasonable time;
and

iii) that he had no agent empowered to accept

service of summons on his behalf.

If the above three conditions are fully complied with, then only

summons may be served on the adult member, whether male or

female residing with him.

9. In the instant case, though the 3rd defendant has received

the summons, he has not made a statement that his father and

brother were unlikely to return home at the earliest. Applying the

principles reiterated in the said decision, the learned judge has

held that there was no valid service of summons insofar as

defendants 1 and 2 are concerned.

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10. What is argued before this court by the learned counsel for

the appellant is that remand should not have been resorted to by

the first appellate court when material is available before it. He

has argued that the appeal should have been decided in one way

or the other and remand in the present case is incorrect. Reliance

is placed on the decision rendered by the Hon’ble Supreme Court

in the case of ASHWINKUMAR PATEL .v. UPENDRA

J.PATEL & OTHERS (ILR 1999 KAR 2897 SC). In the

present case, defendants had not contested the suit and had been

placed ex parte. The order of remand made by the appellate court

is an open remand and not a restricted remand. If the defendants

had contested the matter and the appeal had been allowed on

some other ground like non-consideration of some material on

record, it would have been something different..

11. In the light of the defendants not appearing before the

trial court, the learned judge of the first appellate court has

thought it fit to give them an opportunity to file written statement

and contest the suit. In this regard, learned judge has imposed

Rs.500/- as cost. The discretion so exercised by the first appellate

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court cannot be considered as incorrect or improper. Under the

facts and circumstances of the case, the order of remand is

justified. Therefore the appeal has to be dismissed.

12. In the result, I pass the following order:

ORDER

The appeal is dismissed. Parties to bear their own costs.

Sd/-
JUDGE

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