Jeet Ram Bazigar vs Shiv Mandir Asan Mahant Samadhi Baba Neem Nath of Village Dadlu, Distt. Kurukshetra and others

J.V. Gupta, J.—This revision petition is directed against the order of the Additional District Judge Kuru kshetra dated May 6. 1987, whereby the order of the trial Court dismissing the application for setting aside the ex parte decree was maintained.

Shiv Mandir Asan filed the suit for the grant of the permanent injunction against Jeet Ram and two others on December 21.1982. The Petitioner Teet Ram Bazigar was arrayed as Defendant No. 3 in the said Suit. The trial Court ordered ex parte proceedings against him on January 24, 1983 asserting that he was served for that date, but had not appeared in spite of service. The other Defendants did not contest the case and the suit was, thus, ultimately decreed ex parte on March 17, 1983. Jeet Ram Bazigar, Defendant filed the application on May 26, 1933, for setting aside the ex parte decree alleging that he was not properly and duly served in the suit and that it was on February 2, 1983, that he purchased the property, in question, from the other two Defendants and he did not know of the litigation. It was on May 20, 1983 that he came to know of this, litigation and immediately thereafter, he filed the present application. That application was opposed by the Plaintiff. It was pleaded that Jeet Ram, Defendant, was duly served and that he had knowledge of the litigation right from the beginning and that his application was time-barred. The trial Court framed the issues and came to the conclusion that there was no sufficient ground for setting aside the impugned ex parte decree as the Defendant was duly served. Even if there was any irregularity in the service, the same could be ignored in view of the proviso to Order IX Rule 13, Code of Civil Procedure, (hereinafter called the Code). The application was also held to be time barred. Consequently, vide order dated December 6, 1985, the said application was dismissed. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and, thus, maintained the order dismissing the application. The learned Additional District Judge mainly relied upon the following provisions of Order IX Rule 13 of the Code,--

Provided further that no Court shall set aside a decree-passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the Defendant had notice of the date of hearing and had sufficient time to appear and answer the Plaintiff''s claim.

The learned Counsel for the Petitioner submitted that in the present case, no summons were ever issued to the Petitioner. The only service on the Defendant was under registered cover which was sent to him under Order XXXIX Rule 3 of the Code, because ex-parte ad interim injunction order was obtained by the Plaintiff. According to the learned Counsel under Order XXXIX Rule 3 of the Code, no summons are required to be sent to the Defendant and, therefore, there was no service on the Defendant of the summons in the suit Thus, argued the learned Counsel, the view taken by the Courts below in this behalf was wholly wrong and illegal. He further argue that the proviso to Order IX Rule 13 of the Code was not attracted because it Will come into play only if there was any irregularity in the service of the summons, Since no summons what so ever was ever served on the Defendant, the question of irregularity, if any, did not arise. In support of the contention, the learned Counsel relied upon Bheru Lal Vs. Shanti Lal,

On the other hand, the learned Counsel for the Plaintiff Respondent relied upon Risaldar Pakhar Singh v. Bhajan Singh (1987) 91 P.L.R. 146, to contend that the provisions of the amending Act of the Code should be construed in such a way that the object of the amendment is not frustrated.

I have heard the learned Counsel for the parties and have also gone through the relevant record.

Admittedly, no summons whatsoever were ever issued to the Petitioner for the service in the suit filed against him. The only notice sent to him was under Order XXXIX Rule 3 of the Code, as the Plaintiff had obtained ex parte ad interim injunction against him Under Rule 3 of Order XXXIX, the applicant is required to deliver to the opposite party or to send to him, by registered post, a copy of the application for injunction together with a copy of the plaint, copies of the documents on which the applicant relies and to file, on the day on which such injunction is granted or on the day immediately following that day. an affidavit stating that the copies aforesaid have been so delivered or sent. It is, therefore, evident that the copy of the summons is not required to be sent under the said provision. Not only that, even in the affidavit filed by the Plaintiff dated December 23, 1982, he never stated that any summons as such was sent to the Petitioner. The affidavit only reads as under:--

The deponent has complied with the provisions of the Order 39 Rule 3, CPC as per orders of this Hon''ble Court dt. 21.12.82 vide which stay order has been granted in favour of the deponent.

The order dated December 21, 1982, only directed notice to be given to the Defendant for January 24, 1983, on filing of process fee, usual affidavit and receipt. In compliance of the said order, admittedly no summons was sent to the Defendant for January 24, 1983 by the Court. In these circumstances, the approach of the Courts below in this behalf was wholly wrong, illegal and misconceived. Since there was no service on the Petitioner at all, be could not be proceeded ex parte. It was held by this Court in K.C. Ganesk''s case (supra) that the proviso to Rule 13 of Order IX applies only to those cases where service of summons is effected on the party, but there is some irregularity in the service of the summons. Similar was the view taken in Bheru Lal''s case (supra) by the Rajasthan High Court, wherein it was held that "the second proviso to Order IX Rule 13 does not contemplate that despite the irregular service of the summon the ex-pane decree would not be set aside if the Defendant could have acquired knowledge of the date of the hearing of the suit. What it says is that the Court shall not set aside a decree... if it is satisfied that the Defendant had notice of the date of hearing. Therefore, in order to get the benefit of this proviso the Plaintiff has to show that the Defendant had knowledge of the date of hearing of the suit despite the irregular service. He cannot take advantage of this proviso merely by showing that the Defendant could have acquired knowledge of the date of hearing if he so chose."

In view of the above discussion and the fact that no summons was ever issued to the Defendant-Petitioner, the ex parte proceedings taken against him were illegal. Consequently, this revision petition succeeds and is allowed. The impugned order is, set aside and the application for setting aside the ex parte decree is allowed with no order as to costs The parties are directed to appear in the trial Court on February 28, 1989, for further proceedings in accordance with law. In order to expedite the hearing of the suit on merits, it is directed that the parties will lead their evidence at their own responsibility though dasti summons may be given, if so desired, as provided under Order XVI Rule 7-A of the Code.