Abdulla Bhat vs Shaban Sheikh

(1) This application in revision is directed against the order in appeal passed by the learned District Judge, Bararnulla, dated September 4th, 1972.

(2) The short facts which have given rise to this present application briefly stated are as follows :

(3) The plaintiff respondent filed a suit for recovery of Rs. 2.000/ from the defendantpetitioner in the court of Sub Judge, Baramulla on 391966

and the suit was numbered as 166. Under the order of the Court summon was issued for the appearance of the defendantpetitioner in the suit on

20 91966. There was no appearance on behalf of the petitioner and the court thought that the service was complete and as the defendant

petitioner had not appeared, so orders for ex parte proceedings were mads. The suit was ultimately decreed on 26121966 on the basis of the ex

parte evidence adduced before the learned Sub Judge. The defendant petitioner filed an application under Order 9 Rule 13 of the Ode of Civil

Procedure for setting aside the ex parte decree on 2741967 and also for condonation of delay in filing the application. The aforesaid application

under Order 9 Rule 13 CPC was rejected by the learned Sub Judge, Baramulla by his order dated 30101967. The petitioner then went in appeal

before the learned District Judge, Baramulla on the ground that no opportunity had been given to him to adduce evidence. The appeal was allowed

and the matter was remanded to the learned Sub Judge and after the remand the learned Sub Judge on the evidence adduced before him, did not

find any merit in the application under Order 9 Rule 13 of the Code of Civil Procedure, for setting aside the ex parte decree and he therefore,

dismissed the application The present petitioner then preferred an appeal before the learned District Judge Baramulla, and this appeal of his was

also dismissed, and hence this present revision petition.

(4) At the time of the hearing of this application substantially two points were pressed by the learned counsel for the petitioner Mr. Dhar, one of

these is to the effect that there was no proper service of summons as required by law because alongwith the summons there was no copy of the

plaint. The second which has been taken by him is that the evidence as adduced in the hearing of this application under Order 9 Rule 13 of the

Code of Civil Procedure showed that the Lumberdar Habib Sheikh was an attesting witness of the service of the summons and as such he was an

essential witness but he was not examined.

(5) Now with regard to the first point taken by the learned counsel for the petitioner, it may be mentioned that this point had also been raised

before the learned District Judge in appeal. The learned District Judge did not allow this contention on two grounds, firstly that had it been so that

no copy of the plaint was served then this point would have been taken in the application for setting aside the ex parte decree but it had not been

taken. The second reasoning adopted by him was that the copy of the plaint accompanying the summons obviously was delivered to the petitioner

& then his signatures were taken on the summons. At the first hearing of this application thought that in the ends of justice it was necessary to see

the summons itself and for this reason, as also prayed for by the learned counsel for the petitioner, the original record of the aforesaid suit was

called for. On a perusal of the summons which is said to have been served on the defendantpetitioner there is only a mention of this fact that a suit

had been filed and that the defendant should appear on 2091966 in the court of the SubJudge, Baramulla. At one place it is also written that the

claim is for Rs. 2.000/. The summons therefore, does not show that at the time of the service of the summons any copy of the plaint was also

served on the defendantpetitioner. There is absolutely no indication about it. So presumably it appears that no copy of the plaint was served on the

defendantpetitioner.

(6) The relevant rule in this connection is Rule 2 of Older 5 of the Code of Civil Procedure. This Rule occurs under the Chapter ""Issue and

services''. Rule 2 of Order 5 lays down:

Every summons shall be accompanied by a copy of the plaint, or, if so permitted, by a concise statement.

(7) The word used in this Rule is ""shall'' and that would mean that it is mandatory and this provision of law enjoins that the summons should be

served in the manner as required in this Rule i.e. to say the summons shall be accompanied by a copy of the plaint. It is permissible that a concise

statement instead of a copy of the plaint may accompany the summons provided it has been so permitted by the Court Here there was no such

permission and there is nothing to show that even any concise statement was sent and served with the summons on the petitionerdefendant. The

idea is very clear as to why there is an emphasis on the defendant being served with a copy of the plaint so that it may enable him to know exactly

what is the nature of the suit and on what basis etc. It has been filed. I have already indicated above that the contents of the aforesaid summons

give no idea except that a suit for the recovery of Rs 2000/ has been filed. The learned counsel for the petitioner in this connection has relied on a

decision in the case of M. G. Dua Vs. Balli Mal Newal Kishore reported as AIR 1959 Punjab 467 wherein it was held a summons not

accompanied by a copy of the plaint cannot be regarded as duly served. He has also relied on a decision in the case of K. A. Desai and Co. Vs.

Vijaysingh ji Bhimsinghji reported as AIR 1954 Saurashtta 84 The significance attached to Rule 2 of Order 5 of the Code of Civil Procedure and

as to what would be its effect if it is not served according to that rule would be clear if reference is made to some other provisions of law to which I

will presently refer.

(8) Order 9 of the Code of Civil Procedure deals with matters of appearance of parties and consequence of nonappearance. Order 9 Rule 6 of

the Code lays down what the court has to do so if on the date fixed the plaintiff appears and the defendant does not appear when the suit is called

for hearing, then under clause (a) it is laid down that if it is proved that the summons was duly served, the court may proceed ex parte. It is

important to note here that the words used are ""duly served"" and not only ''served"". I may also in this connection refer here to the provisions of

Rule 13 of Order 9 which deals with the filing of an application for setting aside the ex parte decree and it lays down that if the Court is satisfied

that the summons was not duly served, or that he was prevented for any sufficient cause from appearing........here also the words used are ""duly

served"". The word ""duly"" has not been defined in the Code but the proper meaning which can be attached to the word is that 'duly served' would

mean that the service has been in a regular manner and in conformity with the provisions of law. Now if the summon was not accompanied with the

copy of the plaint as it was not done in this case, then it naturally follows that it was not duly served.

(9) The learned counsel for the petitioner has also submitted that the court acted rather in haste in at once drawing up an order for ex parte

proceedings and not giving any time. It has been urged on the other hand that the ex parte decree was not passed on that date and the defendant,

petitioner had sufficient time to appear In my opinion the court concerned also has over looked another important provision of law in this

connection. The dare which was fixed in the suit for appearance of the defendant was 2091966 The summons which is said to have been served

shows that it was served on 1891966 thus giving a margin of only two days for the appearance of the defendant in the court. I may now in this

connection refer to Clause (c) of Rule 6 of Order 9 of the Code of Civil Procedure. This clause lays down as follows :

If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the

summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the court and shall direct notice of such day to be given to

the defendant.''

(10) It can be said that when the suit was adjourned and no ex parte order was passed on that day so there was compliance of the aforesaid rule

but the rule towards the latter part as quoted above also envisages that the court shall direct notice of such date to be given to the defendant. No

such notice was issued to the defendant in the present case thereafter.

(11) In view of these facts I think that on the material on record, the summons was not duly served as required by law on the defendant and since

this is a substantial point of law, so it cannot be thrown out and be not considered only on this ground that somehow or other this objection was

not taken in the original application for setting aside the ex parte decree.

(12) Now with regard to the second point i e. nonexamination of Habib Sheikh Lumberdar I think there is no substance in that because he was

called as a witness by the plaintiff respondent but was not examined as he was said to have become hostile. In such circumstances it was open for

the defendant petitioner to examine him but he also did not examine him. The court could have examined him as a court witness but if the court

failed to do so, thinking that it was not necessary on the material on record, then it cannot be said that there was any such illegality which would

alone justify the setting aside of the order of Sub Judge.

(13) I think on the first point which I have discussed above that affords sufficient reason that there should be a rehearing of the suit, and that will be

in the ends of justice also. This revision petition is therefore, allowed on condition that the petitionerdefendant pays a cost of Rs. 50/ to the

plaintiffrespondent or deposits this amount in the court of Sub Judge Baramulla on or before September 11, 1973 and on that date the parties will

also appear before the trial court of Sub Judge for further order for proceeding in the case. In the event the aforesaid costs is paid or deposited in

time the ex parte decree passed in the case by the Sub Judge, Baramulla, on 26121966 will beset aside and the suit will be disposed of afresh by

the said court according to law 5 but in case the aforesaid costs are not paid or deposited in the Court by the date mentioned above, then the

revision petition shall stand dismissed without further reference to this court.