Ram Narayan vs State of Bank of Indore and Another

R.B. Dixit, J.

A money suit No. 1 1-B/86 was filed in the Court of First Additional Judge to District Judge, Vidisha on behalf of State Bank of Indore against the petitioner and another, which was fixed for appearance of the defendants on 28-8-1986. None of the defendants though served appeared on the date fixed. Consequently resulting in ex-parte decree against the petitioner and other respondent No. 2 M/s Mahalaxmi Agency. At the time of execution after about four years of passing the ex-pane decree, petitioner moved an application for setting aside the ex-pane decree under Order 9 Rule 13, CPC, which was registered as MJC No. 7/90 and was dismissed vide order dated 22nd October, 1997, against which Civil Revision No. 624/98 was filed before the High Court. However, it was too dismissed vide order dated 6-8-98 of this Court. The present review petition under Order 47 Rule 1 of CPC has been presented against the aforesaid order of this Court on the ground that the mandatory provision under Order 37 Rule 2 (2), CPC was overlooked while rejecting the revision petition.

It is not the case of the petitioner that the summons was not served on him. What is disputed is that the proceedings were summary in nature and required to be disposed of under the provision of Order 37 of the Code of Civil Procedure, which provides the service of summons in Form 4 of Appendix B or any such other form as may be prescribed from time to time in this behalf. It is not disputed that the summons was not in the prescribed form as provided under Order 37 Rule 2 (2) of CPC. However, it was in the form of a regular civil suit under Order 5 Rules 1 and 5 of CPC.

The learned Single Judge while disposing of the civil revision had observed that the notice available on record is under the signature of the petitioner and that the copy there of was received by him. The report of the Process Server shows that it was served on the petitioner on 5-6-1986 for the date fixed as 28-8-1986, but the petitioner had failed to appear. The other defendant was served on 4-5-1986 but he also did not appear before the Court. The learned Trial Court found that there was no reasonable cause for absence of petitioner in the Court on 28-8-1986 and also that thereafter the application for setting aside the decree was filed after about four years and was highly belated. It was further observed that even the notice to the petitioner was not issued in the prescribed proforma, it was still obligatory on the petitioner to attend the Court on the fixed date after he had received the notice. The petitioner had sufficient time, yet he did not care to attend the Court even to object that the notice was not on prescribed proforma. Such lapse was only an irregularity and did not vitiate the further proceedings.

The learned counsel of the petitioner has submitted before us that in a summary proceedings under Order 37 of the Code of Civil Procedure, it is obligatory on the part of the Trial Court to have issued the notice in the prescribed proforma as provided under Order 37 Rule 2 (2) of CPC. In absence of notice in the prescribed form it can not be considered to be a valid service on the petitioner/defendant and no decree even ex-pane could be passed in absence of a valid notice. This material aspect has escaped from the notice of this Court while disposing of the civil revision. Reliance is placed on a D.B. decision of this Court in case of Laxmibai Vs. Keshrimal Jain, reported in 1994 JLJ 747, wherein after taking into consideration a Single Judge decision in case of Smt. Chhutbai and Another Vs. Madanlal and Another, , Laxminarayan S. Sharma Vs. Rameshwar R. Khandelwal, , Electric Construction and Equipment Vs. Permali Wallace, reported in 1991 JLJ 45 and Daulatram Vs. Ishwari Prasad, reported in 1992 (1) MPJR-SN 28, it was observed that Order V, Rule 2, CPC, in mandatory terms provides that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Accordingly, if the summons are not accompanied by a copy of the plaint, it can not be said that there is due or valid service on the defendant and if there is no valid service, a decree on such defendant has to be set aside. Similar view has also been expressed in another Single Judge decision of this Court in case of Shekh Wahid Vs. Gokulchand and another, reported in 1991 JLJ 688.

We have heard the learned counsel of the petitioner and have perused the aforecited decisions of this Court as well as relevant documents available on the file of aforesaid civil revision of this Court. We are of the considered opinion that the amended proviso to Rule 13 Order 9, CPC which was added by the Act No. 104 of 1976 and came into effect from 1-2-1977 was not considered in any of the aforecited decisions of this Court, which requires 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'' claim. It seems to us that at the time of hearing of the D.B. decision in case of Laxmibai (supra), the aforesaid amended provision of Rule 13 Order 9, CPC was not brought in notice of the Court.

The effect of aforesaid amended provision to Rule 13 Order 9, CPC will be that no notice can be held invalid merely on the ground that it was not issued in proper proforma. What is required under the amended provision is that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff''s claim. Now no ex-parte decree can be set aside merely on the ground that there has been an irregularity in the service of the summons. In so far as the present case is concerned, it is not disputed that the petitioner was served well in time to appear and take objection if any in respect of the proforma of the summons issued to him. However, it seems to us that the defendant had deliberately avoided to appear for taking advantage of the irregularity in issuance of the notice upon him.

The Hon''ble Apex Court in case of Prem Nath Sharma Vs. State of U.P. and another, , has observed that where from a bare perusal of the previous judgment of Apex Court found that the legal aspect of some questions was never canvassed, the decision can not be said to be binding and precedents sub silentio and without argument are of no moment. It was further observed in case of State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, , that a decision which is not expressed and is not founded on reasons nor it proceeds on consideration of an issue can not be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of the Constitution.

It was pointed out by the Apex Court in case of Arnit Das Vs. State of Bihar, , that a decision not expressed, not accompanied by reasons and not proceeding on such consideration of an issue can not be determined to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in a technical sense when a particular point of law was not consciously determined. In case of M/s. A-One Granites Vs. State of U.P. and Others, , it was further made clear that as the question regarding applicability of Rule 72 of U.P. Minor Minerals (Concession) Rules, 1963 having not been even referred to, much less considered by Supreme Court in the earlier appeals, it can not be said that the point is concluded by the same and no longer res Integra and accordingly the Supreme Court is called upon to decide the same.

Taking into consideration the implications arising under the aforesaid decisions of the Apex Court, we are of the considered opinion that in absence of consideration of the amended proviso to Rule 13 Order 9, CPC as referred hereinabove, the D.B. decision in case of Laxmibai (supra) and others had no binding force regarding technical irregularities in service of summons, where the summons was duly served and defendant had sufficient time to appear on the date fixed. In our opinion, therefore the impugned order of this Court passed in aforesaid civil revision suffers with no legal infirmity.

Consequently, the review petition is devoid of merit and is dismissed accordingly.