Pakhar Singh vs Bhajan Singh and Others

R.N. Mittal, J.—This revision petition has been filed by the Plaintiff against the order of the Additional District Judge, Ludhiana, dated 2nd February, 1979.

Briefly the facts are that the Plaintiff-Petitioner filed a suit against the Defendants for declaration that he was the owner of the land in dispute. The Defendants were served with summonses under registered post for 27th December, 1973. Bhajan Singh and Jagjit Singh, Defendants Nos. 1 and 2, did not appear on that date and were proceeded against ex parte. The case was adjourned to 10th January, 1974 for the written statement of Karam Singh, Defendant No. 3. On 10th January, 1974 Karam Singh, Defendant No. 3, admitted the claim of the Plaintiff in his written statement. On 28th March, 1974 a decree was passed in favour of the Plaintiff.

The Defendants Nos. 1 and 2 filed an application for setting aside the ex parte decree on 2 4th October, 1975 and they pleaded that they came to know about the ex parte decree on 16th October, 1975 when a copy of the application u/s 152 of the CPC for amendment of the judgment was supplied to them on behalf of the Plaintiff. Consequently they prayed that the ex parte decree be set aside and they be allowed to contest the suit. The application was opposed by the Plaintiff who inter alia pleaded that the application was beyond limitation and there were no sufficient grounds for setting aside the ex -parte decree.

The learned trial Court held that there was proper service of the Defendants, that they failed to appear in the court on 27th December, 1973 and that the application was barred by limitation. Consequently it dismissed the same. The Defendants went up in appeal before the Additional District Judge, Ludhiana who came to the conclusion that the summonses served upon Defendants Nos. 1 and 2 were not accompanied by copies of the plaint and, therefore, it could not be held that the Defendants had been duly served. It also held that the Defendants came to know about the decree on 16th October, 1975 and, therefore, the application for setting aside the ex parte decree was within limitation. Consequently it accepted the appeal and set aside the ex parte decree dated 28th March, 1984 against Defendants Nos. 1 and 2. The Plaintiff has come up in revision to this Court.

It is contended by Mr. Ujagar Singh that Defendants Nos. 1 and 2 had been served with summonses for 27th December, 1973 and they had the knowledge of the date of hearing. If the copies of the plaints were not attached with the summonses served upon them it was to be treated as a mere irregularity under the second proviso to Order 9, Rule 13 of the Code of Civil Procedure. Therefore, the Defendants cannot plead that they had no knowledge about the date of hearing. The application for setting aside the ex parte decree has been filed after more than 1 1/2 years and thus it is clearly barred by limitation. On the other hand, Mr. Majithia has submitted that under Order 5, Rule 2 of the Code it was mandatory that copies of the plaint should have been annexed with the summonses served upon Defendants Nos 1 and 2 and in the absence of the copies of the plaint it was no service in the eye of law. According to him, second proviso to Order 9, Rule 13 applies in case there is irregularity in the service and not if there is illegality therein. In support of his contention he has placed reliance on M.G. Dua Vs. Balli Mal Nawal Kishore, , Jagat Ram v. Shanti Sarup 1965 P.L.R. 45, Kesar Singh v. Tara Chand and Anr. 1971 P.L.R. 198, Jagan Nath and Anr. v. Tek Chand 1974 P.L.R. 339, M/s Parma Nand Bhalothia and Sams v. M/s Adarsh. Oil Mills 1976 P.L.R. 485, Smt. Hiren Ghosh v. Smt. Sasikala Padhi and Ors. 57 (1984) C.L.T. 494, Karnail Singh v. Dina Nath and Ors. 1985 (2) R.L.R. 539, Bheru Lal Vs. Shanti Lal, .

I have duly considered the arguments of the learned Counsel, Order 5, Rule 2 of the Code provides that every summons shall be accompanied by a copy of the plaint or if so permitted by a concise statement. Order 9, Rule 13 relates to setting aside of ex parte decree against the Defendant. It reads as follows:

In any case in which a decree is passed ex parte against a Defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against his upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided...

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.

Explanation...

The second proviso was added to the rule in 1976 The objects and reasons of adding the proviso were as follows:

Rule 13 deals with setting aside of ex parte decree against Defendants. A new proviso is being added to the rule to ensure that the Court should not set aside an ex-parte decree merely on the ground of irregularity in the service of the summons in a, case where the Defendant had adequate nonce of the case of hearing of the suit

It is evident from a mere reading of the rule that an experte decree can be set aside on two grounds firsuly if the court (sic)the summons was. not duly served on the Defendant and secondly, if the Defendant was prevenced by a sumclent cause from appearing in the Court on the date of nearing. The second proviso is a rider to the rule. it provides that the Defendant comes to know about the date of nearing of the sun and there is suihcrent time at his disposal to appear in the court it is mcumbent:on him to appear there and file reply in the case. The purpose of intro-ducing the proviso appear to be that the Defendant may not be able to proton the litigation and thus delete the enus of justice it is true that Order 5, 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 attaches with the summons it is an illegancy in the service, However, after introduction of the proviso, that interpretation ''does not hold good. It is a settled principle of law that it there is some contact in different provisions of an Act, they should be construed harmoniously. It is also a settled principle of law that the provisions of an amending Act should be given effect to and they should be construed in such a way that the object of the amendment is not frustrated. As already mentioned the proviso says that the service of the Defendant is to be treated as proper if he comes to know about the date of suit sufficiently prior to the date of hearing Therefore the test for determining as to whether the service is proper or not is, firstly, whether the Defendant had come to know about the date of hearing of the suit and secondly, whether he had enough time to appear in the Court. In case these tests are satisfied the service is proper even if there is non-compliance of some provision of the Code. Consequently I am of the opinion that if a summons is served on the Defendant without a copy of the plaint it is an irregularity, which is cured by the 2nd proviso.

In the above I am fortified by the observations in Anaithalayan Vs. Marudamuthu, , Raghubir Sahai Bhatnagar Vs. Bhakt Sajjan, S.P. Srivastava Vs. Smt. Prem Lata Srivastava, . The Madras High Court had added a similar proviso under Order 9, Rule 13. In Anaithalayart''s case (supra) the summons was tendered to the Defendant but he refused to sign the acknowledgment. The summons was not pasted after refusal on the outer door of the house. The Court proceeded against the Defendant ex parte and passed an ex parte decree. An application for setting aside the ex parte decree was made by the defandant which was dismissed by the trial Court. It was observed in revision by the High Court, that the proviso applied to all cases in which there was failure to observe provisions as to service of summons under Order 5, including the failure to affix summons on outer door on refusal to sign acknowledgment. It was further observed that in all such cases if it be proved that the Defendant had notice of the date, of hearing in sufficient time to appear and answer the Plaintiffls claim, it would be an irregularity which is cured by the proviso. Similar proviso was added by the Allahabad High Court under Order 9, Rule 13. The same question came up before that Court in Raghubir Sahai Bhatnagar''s case (supra). In that case too the Defendant had refused to accept the summons and the process-server did not affix the copy of the summons on the Defendant''s house. It was observed by a Division Bench that the proviso to Order 9, Rule 13 comes into play when some irregularity occurs in the service of the summons. No doubt, Order 5, Rule 17 requires that on Defendant''s refusal to accept the summons the process-server should affix the same on the outer door of the Defendant''s place of residence or business, but his failure to go through, the prescribed formality is a technical fault amounting to an irregularity. The above view was followed by that High Court in S.P. Srivastava''s xase (supra).

Now I advert to the cases referred to by Mr. Majithia. It is true that in M.G. Dua''s, Jagan Nath''snnd M/s. Parma. Nand Bhalothia and Sons'' cases (supra), it was observed that a summons cannot be regarded as duly served unless it is accompanied by a copy of the plaint. However, those observations were made when-the proviso was not added to Order 9, Rule 13. The learned Judges, had no occasion to consider the effect of the newly added proviso. After the introduction of the proviso, the service of summons without a copy of the plaint ceases to be a sufficient ground for setting aside an ex parte decree as already discussed if the Defendant, has the knowledge of the date of hearing and he had sufficient time to appear and defend the proceedings. The addition, of the proviso has made all the difference. In Jagat Rani''s case (supra), the question was as to which date should be considered, as, first date of hearing under the provisions of the East Punjab Urban Rent Restriction Act. In my view the ratio in these cases is of no assistance. In Kesar Singh''s case (supra) the Defendant refused to accept service and the summons was affixed on his outer door without copy of the plaint. It was held by the learned Judge that in View of Order 5, Rule 17 a copy of the plaint should have been affixed at the outer door of his house and. therefore, the same was illegal. The learned Judge also relied on Jagat Ram''s case (supra) which I have already dealt with.

I am of the view that the ratio in the above case no longer holds good. The facts of Karnail Singh''s case (supra) are the same as those of Kesar Singh''s case (supra). For similar reasons I do not find that this case is helpful to Mr. Majithia.

The observations in Smt. Hiran Ghosh''s case (supra) support the contention of Mr. Majithia. However, with due deference to the learned Judge I regret my inability to accept the said view. In Bheru Lals case (supra) it was held in the facts of that case that'' the Defendant had no knowledge of the date of hearing and consequently the proviso to Rule 13 ibid did not apply. The facts of that case are also distinguishable. However, the following observations in that case help the counsel for the Petitioner:

The second proviso to Order 9, Rule 13 CPC does not contemplate that despite the irregular service the ex parte, 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.

Faced with this situation Mr. Majithia has argued that in the revision the impugned order should not be interfered with. To fortify his argument he made reference to Nam Chand and Anr. v. Mst. Man Bhari and Anr. 1957 P.L.R. 449 and Union of India v. Smt. Bishan Devi and Anr. 1986 (1) P.L.R. 531 I do not find any substance in this submission as well. It is well settled that if a Court has acted with material irregularity in the exercise of its jurisdiction an aggrieved party can always file a revision to this Court. In the, present case, as already mentioned above, the Petitioner had the knowledge of the date of hearing but he failed to appear in the Court on that date. He in order to delay the proceedings,. filed. the application for setting aside ex parte decree after more than ane and a half years. The appellate Court without taking into consideration the second proviso to Rule 13 ibid set aside the decree passed against the Defendant-Respondent. In the circumstance, in my view, the revision petition is maintainable. In Nem Chand''s case (supra) the learned Chief Justice refused to interfere with the order of the trial Court because he was of the view that substantial justice had been done between the parties. It is sufficient to observe that the facts of both the cases referred to above are distinguishable and therefore, the observations therein are of no assistance to Mr. Majithia.

For the aforesaid reasons, I accept the revision petition with costs, set aside the order of the Additional District Judge and restore that of the trial Court, Counsel''s fee Rs. 400.