V. KUMAR, V. BHASKAR AND V. SRINIVAS S/O. LATE A. VARADARAJACHARI Vs. SRI ABDUL BASHITH S/O. LATE ABDUL JABBAR, SMT. M.S. PUSHPAVATHI W/O. K.V. MANUNATH AND SRI K.V. MANJUNATH

JUDGEMENT

(1.) THIS appeal is filed challenging the order dated 9.11,2005 passed in Miscellaneous Petition No. 614/1999 by the VIII Additional City Civil Judge, Bangalore.

(2.) THE relevant facto for the disposal of this appeal are that the appellants' father had entered into an agreement with the 2nd respondent herein on 28.3.1983, Subsequently, the 2nd respondent entered into an agreement with the 1st respondent to sell the suit schedule property on 19.1.1990. Since the appellants and their father were in possession of the same, a suit for possession was filed by the 1st respondent against the appellants herein and the said suit was decreed exparte. Being aggrieved by the said judgment and decree, the appellants fled Miscellaneous Petition Fo.614/1999 under Order IX Rule 13 of CPC R/w Section 151 of CPC requesting to set aside the said judgment and decree passed in O.S. No. 3691/1997 dated 10.11.1998 and to restore the suit on the file of the Court. The said miscellaneous petition has been dismissed. Being aggrieved by the said order of dismissal, this appeal has bean preferred.

(3.) IT is contended on behalf of the appellants that when the agreement was entered into between the 2nd respondent and the father of the appellants the appellants were residing at Palace Guttahalli. The 1st respondent while arraying the appellants as defendants had given the said address. After order for issuance of notice and summons in O.S. No. 3691/1997, which was filed by the 1st respondent herein, summons were taken to the Place Guttahalli address of the appellants. But, it was returned with a Shara that the said appellants did not reside there. Subsequently, an order for substituted service was made by the trial Court by way of affixture and the 1st respondent took steps for affixture with regard to the very same address at Palace Chittahalli. It is further contended that, the trial Court has failed to notice the fact that, though it has come in the evidence at the relevant point of time that the appellants were residing at Geddalahalli, the substituted service could have been taken at the said address but taking the substituted service where the appellants did not reside was not correct. The trial Court could not have held that the defendants/appellants were served and placed them exparte. In the circumstances, the application filed under Order 9 Rule 13 of CPC ought to have been allowed by taking the material on record particularly, Exs.P14, 15 and Ex.R5 and restore the suit Therefore, he submits that en the basis of the material on record, this is a fit case where the order of the trial Court has to be set aside by allowing the Miscellaneous petition filed under Order IX Rule 13 of CPC and to restore O.S. No. 3691/97 by giving an opportunity to the appellants to contest the said suit.