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2006 DIGILAW 466 (KAR)

AZEEZ KHAN v. BADRUNISSA BEGUM

2006-06-08

CYRIAC JOSEPH, N.KUMAR

body2006
JUDGMENT Cyriac Joseph, C.J. (Oral): The appellant is the petitioner in Writ Petition No. 15223 of 2005. When the notice issued to the respondent in the writ petition could not be served in the normal course, the appellant filed I.A. No. I of 2006 seeking permission to take out notice to the respondent by publication in the newspaper "Daily Pas ban". The said application was allowed by the learned Single Judge on 5-1-2006 subject to the direction that the notice should be taken out by paper publication in "Vijaya Kamataka" daily. Thereupon the appellant filed LA. No. III of 2006 praying for modification of the order dated 5-1-2006. In I.A. No. III of 2006, the appellant prayed that he may be permitted to take out notice by paper publication in "Daily Pasban" instead of "Vijaya Karnataka". The said application for modification was rejected by the learned Single Judge on 8-2-2006. Aggrieved by the said order dated 8-2-2006 rejecting I.A. No. III of 2006, the appellant has filed this writ appeal. 2. The contention of the appellant is that the learned Single Judge ought to have allowed the writ petitioner/appellant to take out notice to the respondent by paper publication in "Daily Pas ban" itself and that the learned Single Judge erred in directing to take out notice in a newspaper different from what was suggested by the writ petitioner. 3. We have heard learned Counsel for the appellant. We have also perused the materials placed on record. 4. The High Court of Karnataka has framed the Writ Proceedings Rules, 1977 to regulate proceedings under Articles 226 and 227 of the Constitution of India. There is no specific provision in the said Rules relating to notice by substituted service. However, Rule 39 of the said Rules provides that the provisions of the High Court of Karnataka Rules, 1959, the rules made by the High Court of Karnataka under the Karnataka Court Fees and Suits Valuation Act, 1958 and the provisions of the Code of Civil Procedure, 1908, shall apply, as far as may be, to proceedings under Article 226 and/or Article 227 and writ appeals in respect of matters for which no specific provisions is made in the said rules. 5. 5. Rule 13 in Chapter XIII of the High Court of Karnataka Rules, 1959 provides that if a notice issued to a party through Court is not served in the ordinary way on three occasions, the matter shall be posted before the Registrar for further orders. If the Registrar is satisfied that the party intended to be served is keeping out of the way for purposes of evading notice, or that for any other reason the notice cannot be served in the ordinary way, the Registrar may order substituted service in the manner prescribed by the Code of Civil Procedure. The party or Advocate at whose instance the notice was issued shall be at liberty to make an application supported by affidavit for substituted service even if three attempts at service in the normal way have not been made and the Registrar may, if he is satisfied as aforesaid, order substituted service. 6. Order 5, Rule 20(1) of the CPC provides that where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. 7. Order 5, Rule 20(1-A) of the CPC provides that where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. 8. Rules 20(1) and 20(1-A) clearly provide that the choice of the newspaper in which the notice is to be advertised is the sole discretion of the Court. If the Court is satisfied that a particular newspaper has circulation in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain, the Court is competent to order notice by publication in the said newspaper. If the Court is satisfied that a particular newspaper has circulation in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain, the Court is competent to order notice by publication in the said newspaper. If the Court is satisfied that the newspaper suggested by the applicant does not have sufficient circulation in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain, the Court is not bound to order publication in the newspaper suggested by the applicant and the Court is free to order publication of notice in any other newspaper which in the opinion of the Court has sufficient circulation in the locality. In this case, it is clear from the records that the learned Single Judge was not satisfied that the newspaper ''Daily Pasban" suggested by the applicant had sufficient circulation in the locality and hence he directed publication in "Vijaya Karnataka". 9. Learned Counsel for the appellant submits that "Daily Pas ban" is an Urdu daily having sufficient circulation in the locality. That is only the opinion of the appellant or the learned Counsel. It is for the Court to be satisfied whether the newspaper is having sufficient circulation in the locality. 10. Learned Counsel then submitted that the advertisement in "Vijaya Karnataka" is more expensive than the advertisement in ''Daily Pas ban". The cost of publication cannot be the criteria for deciding the newspaper for publication of notice. The paramount importance is the possibility of the respondent coming to know of the proceedings before the Court, so that, she gets an opportunity to appear and contest the case. If the notice is allowed to be published in an unknown or insignificant newspaper which does not have wide circulation in the locality, the very purpose of publication of notice will be defeated. It will also result in miscarriage of justice. The financial position of the applicant and the 'cost of advertisement cannot be taken into consideration at the cost of justice. 11. In the above circumstances, there is no merit in the writ appeal and the writ appeal is dismissed.