RAMANNA Vs. K.S.SUNIL GUPTA

JUDGEMENT

(1.) Petitioner being the second defendant in a suit for specific performance in O.S.No.9363/2004 is invoking the writ jurisdiction of this Court for assailing the order dated 22.08.2014, a copy whereof is at Annexure ? C, whereby the learned Additional City Civil and Sessions Judge, Bengaluru, has rejected his application in IA No.20 filed under Order IX Rule 7 of CPC, 1908 for setting aside the order by which he was placed ex parte. The contesting respondents having entered appearance through their counsel resist the writ petition.

(2.) Learned counsel for the petitioner argues that the impugned order is bad because: a) it proceeds on a wrong legal premises that one single visit by the process server to the residence of the defendant is sufficient when his mother accepted the service of summons when law requires otherwise, b) Order V Rule 15 of CPC requires an endorsement by the process server as to non-availability of the defendant as a precondition for serving the process on his adult family members, which is lacking in this case, and c) the service of notice on the mother of the defendant even otherwise also is not in accordance with law which the Court below has ignored. So arguing, he seeks allowing of the writ petition.

(3.) Learned Sr. Counsel, Shri R.V.S.Naik appearing for the advocate on record for the contesting respondents, per contra, contends that there is no error of law or fact that infects the impugned order; service of notice on the adult member of the family of the defendant, when he is away from residence is not disputed and such service is sufficient in terms of Order V Rule 15 of amended CPC w.e.f. 01.02.1977 and there is no requirement of any endorsement to be made by the process server as argued by the petitioner; the petitioner is not a scrupulous litigant who deserves remedy at the hands of Writ Court. So contending, he seeks dismissal of the writ petition.