Babu Ram Bhatnagar vs Satish Kumar Rawal

Naresh Chander Jain, J.—This revision petition has been preferred by the landlord against the order of the Rent Controller, Karnal, allowing the application of the Respondent tenant for setting aside the ex-parte decree dated 4-6-1987. The facts of the case lie in very narrow campass and may thus be noticed.

The landlord instituted an application for eviction of the tenant on January 2, 1987 upon which the Rent Controller ordered that the service may be effected in the ordinary course as well as by registered cover for May 1, 1987. The tenant failed to put in appearance on the aforesaid date resulting into ex-parte proceedings. The order of eviction was thus passed on June 4, 1987. The tenant was actually dispossessed on October 18, 1987 after the lock of the shop was broken in his absence when he was away to Panipat on 17th October, 1987. He came from Panipat to Gharaunda where the demised premises is situated on 18th October, 1987 and found that the landlord was in possession of the shop. After making the necessary inquiries on 19th October, 1987 into the matter an application for setting aside the ex-parte decree was moved on the ground that a false report of the refusal was procured by the landlord in collusion with the process server. It was the case of the tenant that no summons were ever presented, to him. It was further the case of the tenant that the Petitioner was never souget to be served through registered post.

The application was contested by the Petitioner on the pleas that there was proper service and that the applicant was aware of the filing of the ejectment petition. The plea of limitation was also (sic) . On the rival pleadings of the parties, the Rent Controller struck the following issues:

Whether the ex-parte proceedings/order dated 4-6-1987 are liable

to be set aside on the grounds mentioned in the application? OPA.

Whether the application is not within time? OPR.

Relief.

The Rent Controller after recording the evidence of the Petitioner and the Respondent decided issue No. 1 in favour of the tenant. Issue No. 2 was decided in favour of the tenant as the same was not pressed by the landlord. The revision petition of the landlord was admitted by G.R. Majithia, J. to the Division Bench apparently for the reason that there was a conflict of opinion in two Single Bench decisions on the point-whether it was necessary to attach a copy of the plaint along with summons and if such a copy is not attached, whether the service can be called to be proper or not. This is how the revision petition has come up for hearing before us.

Mr. Nipun Mital, learned Counsel for the Petitioner has vehemently argued that the ex-parte decree could not be set aside on the ground that the copy of the summons was not accompanied by a copy of the application. It has further been argued that the non attachment of the application was merely an irregularity and, therefore, under the proviso added to Order 9 Rule 12 CPC the Court could not set aside the decree passed exparte merely on the ground that there has been an irregularity in the service of summons. The learned Counsel who argued the case with great ability apart from bringing to our pointed notice the Report of the Law Commission on the basis of which the proviso to Order 9 Rule 13 CPC was added, has in support of his argument cited a Single Bench judgment of this Court reported in Risaldar Pakhar Singh v. Bhajan Singh (1987) 91 PLR 146.

On the other hand, the learned Counsel for the tenant in order to contend that summons must be accompanied by a copy of the plaint has sought to place reliance upon an earlier judicial pronouncement of a Single Bench Judgment reported in Karnail Singh v. Dina Nath (1985) 88 PLR 477, a part from the following rulings that is, M.G. Dua Vs. Balli Mal Nawal Kishore, , Jagat Ram v. Shanti Sarup (1965) 67 PLR 45, Kesar Singh v. Tara Chand and Anr. (1971) 73 PLR 198, Jagan Nath and Anr. v. Tek Chand (1974) 76 PLR 335, Parma Nand Boalothia & Sons v. Adarash Oil Mills (1976) 78 PLR 485. Smt. Hiran Ghosh v. Smt. Sasikala Pandhi and Ors. (1984) 57 Cuttack L.T. 494 and Bheru Lal Vs. Shanti Lal,

Before considering the case law referred to during the course of arguments, it is necessary to have a look at the relevant provisions of the statute in order to find out whether the attachment of copy of the plaint is mandatory or directory. Order 5 Rule 2 CPC in explicit terms lays down that every summons shall be accompanied by a copy of the plaint or if so permitted by a concise statement The use of the word ''shall� denotes that the attachment of a copy of the plaint with the summons is compulsory. In other words, either a copy of the plaint or a concise statement thereof is a must along with the summons. That is what was precisely held by G.C. Mital, J. while interpreting the provisions of Order 5 Rule 2 of the Code, of Civil Procedure In Karnail Singh''s case (supra) It has been held In the aforementioned judicial pronouncement that it is the requirement of the law that the summons must be accompanied by a copy of the plaint and unless this is done, more presentation of the summons without a copy of the plaint is no service.

G.L. Chopra, J. as far back as in the year 1959 in M.G. Dua''s case (supra) also observed as follows:

Ex-parte proceedings under Order 9 Rule 6, Code of Civil Procedure, can only be taken where the Defendant does not appear when the suit is called for hearing, if it is proved that the summons was duly served. A summons cannot be regarded as duly served unless it is accompanied by a copy of the plaint. Without a copy of the plaint, the Defendant had no means of knowing as to what was the nature of the suit and deciding whether it was at all necessary for him to defend it.

An ex-parte decree passed in such a case will be set aside under Order 9 Rule 13.

In the year 1965 a Division Bench of this Court comprising of I.D. Dua and D.K. Mahajan, JJ. In Jagat Ram''s case (supra) under the provisions of East Punjab Urban Rent Restriction Act while holding as to what would be meant by the words ''due service'' observed as follows:

Therefore, we are clearly of the view that in the context of the proviso to Section 13(2)(i) of the Act, the words ''due service'' must mean ''service along with the copy of the application''. Any hearing after this service would be a first bearing. The only difference in the view that we have taken of the matter and that was taken by Khosla C.J. is that mere service of summonses will not make the hearing a first hearing; unless the summonses have been served with a copy of the application the appearance of the tenant in response to them will not make that hearing a first hearing. After giving the matter our careful consideration, we are of the view that the only way in which meaning can be given to word ''due� is that the tenant is made aware of what he is to answer in response to the service of summons. Otherwise the word due'' would become superfluous, and in the context in which it appears, it cannot be held that the word ''due'' was superfluously used. It is essential that either the purport of the application is made known to the tenant or a copy of the application is served on him. If the tenant has either not been conveyed the purport or the copy of the application but he appears before the Rent Controller, it would be appearance in response to service of summons but not ''due service of summons''. In other words it will be a hearing but not the ''first hearing�.

In 1974 B.R. Tuli, J. in Jagan Nath''s case (supra) while making a reference to the provisions of Order 5 Rule 2 of the CPC observed as under:

Held, that the summons is meant to inform the Defendant that a suit has been fixed for his appearance on certain date of which information is being given to him by summons. Rule 2 or Order V provides that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. The reading of these two rules together leads to the conclusion that summons shall be deemed to have been duly served only if the summons along with the copy of the plaint or a concise statement thereof, if permitted, is served on the Defendant or tendered to him.

Harbans Lal, J. in M/s Parma Sand Bhalothia and Sons case (supra) has also held that strict compliance of Order 5 Rule 2, CPC is essential for not only doing justice to the Defendant, but also for ensuring speedy administration of justice. The learned Judge was of the view that it was generally seen that the summons were not accompanied by copies of the plaints resulting into adjournment for filing the written statement. The precise observation made by the learned Juige in M/s Parma Nand Bhalothia and Sons'' case (supra) reads as under:

Held, that Order V Rule 2 of the Code in providing that a copy of the plaint must accompany the summons has laid down a very salutary principle strict compliance of which is essential for not only doing justice to the Defendant, but also for ensuring speedy administration of justice. It has generally been seen that the summons sent to the Defendants are not generally accompanied by copies of the plaints. The result is that even if the Defendant is served, on appearance on the date fixed, he is justified in praying for a copy of the plaint and getting the case adjourned for filing the written statement. This necessarily results in unnecessary delay which could be easily avoided if the subordinate Judges issued strict instructions to the effect that a copy of the plaint must accompany the summons. Similarly, the Courts have to be very careful in ordering substituted service and not act in a manner that an impression may be caused that they have become a party to the manoeuvres of the clever Plaintiffs that exparte proceedings may be ordered against the Defendants on one pretext or the other and thus ex-patte decree may be obtained.

The Rajasthan High Court in Bheru Lal''s case (supra) has held that if the summons was not accompanied by a copy of the plaint, the Defendant was perfectly within his right to have refused to accept the summons and in that event he does not need to have a look at the summons to find out its contents and in that situation he would not know of the date of hearing.

A Division Bench of Madhya Pradesh High Court in Smt. Chhutbai and Another Vs. Madanlal and Another, has held (sic) that whenever summons is issued to a Defendant, it must accompany a copy of the plaint or a concise statement. The exact observations of the Madhya Pradesh High Court are reproduced as under:

When the summons issued did not accompany a copy of the plaint, however, the summons indicated the name of the Court the suit No. and the next date of hearing, as per form prescribed for the summons it is not enough compliance of the provisions of Order 5 Rule 2 Code of Civil Procedure. The law is that along with the summons, a copy of the plaint should be served as it is very much essential because the purpose of service of a copy of the plaint or if so permitted, of a concise statement thereof, is to bring home to the Defendant the knowledge of a particular suit having been instituted against him so that the Defendant may know that the claim brought about by the Plaintiff against him and make up the mind against the claim. This is the reason why the law makers have made Rule 2 of Order 5, CPC mandatory by using the word "shall". Accordingly, if the summons is not accompanied by a copy of the plaint, it cannot be said that there is due or vaild service on the Defendant the exparte decree passed against such a Defendant should be set aside.

On an analytical examination of the entire case law cited at the Bar and on pursuing Order 5 Rule 2, CPC it can safely be held that attachment of the copy of the plaint or a concise statement thereof along with the summons is mandatory. No summons can be regarded to have been duly served unless it is accompanied by a copy Of the plaint. ''Due service'' means service of summons along with the plaint, It cannot be held that the word ''due'' has been superfluously used by the Legislature. Compliance of the provisions of Order 5 Rule 2 CPC is a must and it cannot be held to be directory.

We are in respectful agreement with the view taken by this Court and other Courts including the Madhya Pradesh High Court which has given new dimension as regards the Defendant�s making up his mind against the claim of the Plaintiff only after he receives a copy of the plaint. It is only on the service of the plaint along with the summons that the Defendant would be in a position to make up his mind whether to contest the suit of the Plaintiff or not. Assuming that the Plaintiff files a suit for a nominal amount say Rs. 500/- or so the Defendant on receipt of the summons along with the copy of the plaint may decide not to contest the suit and in that situation he may like to suffer an exparte decree. If he docs not receive the plaint along with the summons, surely he cannot decide whether to contest the suit or not. Even in rent matters a tenant may not choose to contest if he receives a copy of the application for eviction. Assuming a landlord files an application for eviction on the ground that the tenant has ceased to occupy the premises for a period of more than four months and such a tenant has, in fact, ceased to occupy the tenanted premises the Court in as has been pleaded, and he is not interested in contesting, why must he go to order to contest. However, if the copy of the plaint or the rent application is not attached With the summons, and such service is held to be ''due service'', he will have to go to a Court of law in order to know the nature of the claim, After he goes there and finds that the claim of the Plaintiff was justified, he would be put, to unnecessary botheration which can be avoided if the copy of the plaint or the rent application is served along with the summons. In view thereof, in order to avoid harassment of the Defendant, it becomes essential for the Court to send a copy of the plaint along with summons.

For the reasons mentioned above we are of the firm view that the attachment of a copy of the plaint is mandatory and no ''due service'' can be said to be effected in the eye of law until and unless copy of the plaint is attached along with the summons. The question then arises in what circumstances second proviso to Rule 13 of Order 9, C.P.C comes into play and in what circumstances it can be availed of by the Plaintiff. In our considered view the proviso would be attracted in a very exceptional case. It can apply to such type of cases where the Plaintiff can prove affirmatively by producing categorical evidence that the Defendant knew the exact claim made in the plaint and if upon production of such evidence the Court feels satisfied like anything that the exact nature of the claim was known to the Defendant, the Court may record a finding that everything was within the knowledge of the Defendant. As to what would he the quality of evidence, it is for the Court to take into consideration. However, it may be emphasised that the quality of the evidence which the Court may rely upon has to be superb. Only in such circumstances the Defendant may not be heard to say that there was irregularity in the service of summons and the Court may in such circumstances only refuse to set aside the ex-parte decree on the ground of irregularity in the service of summons.

In the view which we have taken above, we are unable to subscribe to the view taken by R.N. Mittal, J. in Risaldar Pakhar Singh''s case (supra). We respectfully disagree with the view taken by the learned Single Judge in the aforementioned case. While respectfully disagreeing which the dictum of law laid down by R.N. Mittal, J. in Risaldar Pakhar Singh''s case (supra) we reiterate the view taken in other judicial pronouncements to which reference has been mads above.

Adverting to the facts of the instant case, it has been proved by the tenant that he was not served with the summons. He had stepped into the witness box and stated on oath that he was not served. Initially, the onus which lays upon the Defendant to prove non-service, in our considered view, stands discharged the moment statement on oath is made denying ''due service'' and thereafter it is for the opposite party to produce positive evidence by which the Court can conclude that ''due service'' was effected. In the present case Deepak Prasher the alleged attesting witness on the summons has not been produced. The landlord, gave the address of Deepak Prasher of Barrot district Meerut and not of Gharaunda. From this circumstance alone it can be inferred as has been done by the trial Court, that he was not a resident of Gharaunda. The landlord did not supply registered cover in accordance with the order of the Court dated 23-3-1987 and therefore, the trial Court was right in judging his intention. Moreover, it was incumbent upon the process server to ask any person of the locality about the exact identity of Respondent before recording the report of refusal which has not been done. From all these reasons, we have got the least hesitation in upholding the order of the Rent Controller setting aside the ex-parte decree.

For the reasons recorded above, the revision petition fails and is ordered to be dismissed with no order as to costs.

The parties through their counsel are directed to appear before the Rent Controller on 5-6-1991.