- 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 MAXIE DIAS, APPELLANT NO.2 ALL ARE R/A SOORIKUMERU HOUSE MANI VILLAGE, BANTWAL TALUK, MANGALORE 574 211. 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. Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 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. - 3 - NC: 2025:KHC:11675 RSA No. 71 of 2014 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. - 4 - NC: 2025:KHC:11675 RSA No. 71 of 2014 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 - 5 - NC: 2025:KHC:11675 RSA No. 71 of 2014 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?" - 6 - NC: 2025:KHC:11675 RSA No. 71 of 2014 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." - 7 - NC: 2025:KHC:11675 RSA No. 71 of 2014 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. - 8 - NC: 2025:KHC:11675 RSA No. 71 of 2014 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 - 9 - NC: 2025:KHC:11675 RSA No. 71 of 2014 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 List No.: 1 Sl No.: 45