M/s. International Steel House vs M/s. Vardhman Spinning and General Mills Ltd.

M.S. Liberhan, J.—This revision petition is against the order of the Subordinate Judge declining to set aside ex parte proceedings in a suit for recovery of Rs.4,18,830.00.

The plaintiff-respondent (hereinafter referred to as the respondent) filed a suit for recovery of Rs.4,18,830/- against the defendants-petitioners (hereinafter referred to as the petitioners), who are residents of Madras, in the Court of Subordinate Judge 1st Class, Faridabad. Notices for appearance of the petitioners were issued by registered covers acknowledgement due as well as for personal service for May 20, 1985. The petitioners addressed a telegram to the Court on May 15, 1985 that on account of the illness of their aunt, they would no put in appearance on May 20,1985. The trial Court proceeded ex parte against the petitioners on May 20, 1985.

The petitioners applied for setting aside of the ex parte proceedings on August 2,1985 inter alia contending that there was sufficient cause for their non-appearance on May 20,1985 as their aunt was seriously ill and confined to hospital and according to their custom and rituals they were supposed to be near her, in particular when she was in coma. She died on April 2,1986. No copy of the plaint was served on the petitioners along with the summons sent through registered post. No personal service was effected on them and they acquired knowledge of ex parte proceedings on July 16, 1985. There was no due service effected on them in the eye of law ; and thus the ex parte proceedings are liable to be set aside.

The respondents controverted the pleas taken and defendant ex parte proceedings.

The trial Court found that three there was no sufficient cause for setting aside the ex parte order; that the petitioners; failed to prove the illness of their month''s sister; and that the application was barred by time being beyond 30 days from the date of the ex parte order.

The counsel for the petitioners challenged the findings of the trial Court and contended that there was no due service in the eye of law as the summons were not accompanied with the copy of the plaint; as such no ex parte order could be passed on May 20, 1985. He relied on Jagan Nath and another v. Tek Chand and another, 1974 Punjab Law Reporter 339 and Kesar Singh v. Tara Chand and another, 1971 Punjab Law Reporter 198. The conspectus of law laid down in Jagan Nath s case (supra) and Kasar Singh''s case (supra) after taking note of the provisions of Order V, Rule 1,2,10 2 A and Order IX, Rule 13 of the CPC is to the effect that:

(i) the object of the summons is to inform the defendant that a suit has been fixed for his appearance on certain date of which intimation is being given to him by summons;

(ii) it is incumbent on the Court before issuing the summons to ensure that the same are accompanied by a copy of the plaint or its concise statement. This is with the object that the defendant may, after receiving the summons, know what is claimed against him and whether he wants to defend the claim or not;

(iii) the service of the summons shall be deemed to be duly made only if the summons along with the copy of the plaint or a concise statement thereof, is served on the defendant or tendered to him. In the absence of the tendering of the concise statement or the copy of the plaint, the service cannot be deemed to be a ''due service'' on the defendant;

(iv) Under the amended provisions of Order V, Rule 10 and under Order V, Rule 2A of the Code of Civil Procedure, a right has been given to the Court to assume that summons have been duly served it the registered cover is received back with the report of the postal authorities that it has been refused by the defendant when it was tendered to him ;

(v) mere service of summons does not amount to ''due service'' as envisaged by Order IX, Rule 13 of the Code of Civil Procedure. In the absence of due service, the Court has no jurisdiction to proceed ex parte.

(vi) the language employed in para 3(v) of Chapter VIII-B of the High Court Rules and Orders Volume IV makes it clear that the person concerned has to be informed of the nature and the contents of the case against him. In the absence of''due service'' as envisaged by the CPC read with High Court Rules and Orders, no ex parte proceedings can be initiated against the defendant.

The learned counsel for the respondent controverted the submissions made by the counsel for the petitioners and contended the non service of copy of the plaint is of no consequence. At the most it can be treated an irregularity which is not a sufficient ground to set aside the ex parte proceedings, he relied on Risaldar Pakhar Singh v. Bhajan Singh and others, AIR 1987 Punjab and Haryana 170 wherein it has been observed :

"Where an application for setting aside ex parte decree was filed on the ground that service of summons on defendant was without the copy of plaint therewith, it being mere irregularity, the application for setting aside the ex parte decree could not be allowed in view of prohibition under Order IX, Rule 13 second proviso (as added in 1976).

"An ex parte decree can be set aside on two grounds ;firstly, if the Court finds that the summons was not duly served on the defendant and secondly, if the defendant was prevented by a sufficient cause from appearing in the Court on the date of hearing. The second proviso is a rider to the rule. It provides that if the defendant comes to know about the date of hearing of the suit and there is sufficient time at his disposal to appear in the Court, it is incumbent on him to appear there and file reply in the case. The purpose of introducing the proviso appears to be that the defendant may not be able to prolong the litigation and thus defeat the ends of justice. It is true that Order V, Rule 2 provides that the copy of the plaint should accompany the summons and the Courts before the introduction of the proviso have held, that if a copy of the plaint is not attached with the summons, it is an illegality in the service. However, after introduction of the. proviso, that interpretation without a copy of the plaint, it is an irregularity the defendant having come to know above date of hearing, which is cured by the 2nd proviso."

In my considered view, the object of the procedure laid down by Order IX is to do substantial justice and not to entrap the defendant in the technicalities of the procedure. It is incumbent upon the Court, before proceeding ex parte, to satisfy itself that service has been effected on the defendant in accordance with the law. It is for the trial court to see that the summons were duly served and that the defendant was intimated of a date to appear in the Court to answer a claim made against him, which can be intimated to him either by sending the copy of the plaint or the concise statement of the claim.

In am fully in agreement with the law laid down in Jagan Nath''s case (supra) and Kesar Singhs case (supra), cited by the counsel for the petitioners.

There is on dispute with the facts in this case i.e. to the effect that a specific allegation has been made that service has been effected through registered post and the envelop sent did not contain the copy of the plaint. The specific allegation has been merely denied. Mere denial does not amount to denying the assertions made by the party. It has not been asserted that the registered envelop did contain the copy of the plaint or its concise statement, the facts further find corroboration from the statement of A.W.1 who categorically stated that there was no copy of the plaint or its concise statement in the envelop. The plaintiff further made a suggestion that this defence was taken on the advice of the lawyer when the copy of the plaint was found to be on record. In view of these undisputed facts, it would be reasonable to inter that no copy of the plaint or the concise statement of the plaint was served on the petitioners-defendants. In view of the law laid down and interpreted in the judgments cited by the counsel for the petitioners, it is reasonable to infer that there was no due service of the defendants. Resultantly, the defendants could not be proceeded ex parte. The ex parte order will be a voidable order in the eye of law.

There is no dispute with the proposition of law laid down in Risaldar Pakhar Singh''s case (supra) cited by the counsel for the respondent but the facts and circumstances of this case inasmuch as in the said judgment the statutory provisions of Order IX, Rule 13 were under consideration of the court wherein it has been statutorily provided that no Court shall be aside a decree passed ex parte .merely on the ground that there has been a irregularity in the service of summons, if the Court is satisfied that the defendant had the notice of the date of hearing and had sufficient time to appear to answer the plaintiff''s claim. Herein, still the suit has not resulted in ex parte decree. Proceedings are at the initial stage of filing the written statement. No evidence of the plaintiff has as yet been led. Apart from this, in my view service without the concise statement of the plaint or the copy of the plaint cannot be treated merely an irregularity in service. It will amount to no service at all much less due service.

The counsel for the petitioners further relied on Avtar Singh etc. v. Bhajan Singh etc., 1978 Punjab Law Reporter 103 wherein it has been observed that "rules and procedure are the handmaids of justice meant to advance its cause and to deny the parties decision on merits. Restoration of a case dismissed for default should not ordinarily be denied unless the party is found guilty of contumacious negligence of wilful default."

The facts and circumstances of this case are squarely covered by the ratio of Avtar Singh''s case (supra). It is nobody''s case that the defendants were contumaciously negligent. The defendants are admittedly living in Madras while they have to defend the case filed against them at Faridabad and they did not made an attempt to intimate the Court through a telegram that they could not appear on May 20, 1985 as advised by the counsel. They acted upon the bonafide advice. It will be a great injustice perpetuated, if the defendants are not permitted to defend themselves in a suit for the recovery of more than Rs.4,00,000/-. Even if it is assumed that the defendants were negligent and though sufficient cause has not been proved in its letter and spirit, the ex parte proceedings being at the initial stages, the costs is the panacea for the negligence. Ends of justice would have been met had the ex parte order been set aside on payment of reasonable costs.

The finding returned by the trial Court that the application is barred by time cannot be sustained because of the reason that the defendants acquired the knowledge of the ex parte proceedings on July 16,1985. There is no rebuttal to the same. It is not disputed that they could make the application for setting aside of ex parte proceedings within thirty days from the date of acquiring the knowledge ; and the application having been made on August 1,1985, shall be deemed to be within limitation.

In view of my above observations, the revision petition is allowed the impugned order of the Subordinate Judge is set aside and the ex parte proceedings initiated on May 20, 1985 are set aside on payment of Rs.500/- as costs. The parties are directed to appear before the trial Court on July 17,1989.