Suleman alias Sulla (Died) vs Alam Chand

S.K. Jain, J.—Civil Suit No. 87 of 1980 filed by Alam Chand plaintiff-respondent against Suleman, defendant-judgment debtor-petitioner for specific performance of the agreement for sale dated 2.6,1978, was decreed ex parte on 30.4.1980 by the Senior Subordinate Judge, Gurgaon.

Suleman, petitioner, filed an application under Order 9, Rule 13, read with Section 151 of the CPC for setting aside the ex-parte decree. It was dismissed by the Subordinate Judge, 1st Class, Gurgaon, vide order dated 21.8.1984.

Aggrieved from the said order, the petitioner filed Civil Appeal No. 14/14 of 1984, which was dismissed by the District Judge, Gurgaon, vide judgment dated 28.11.1984. The said judgment has been impugned in this civil revision petition.

Learned counsel for the petitioner has argued that both the Courts below had legally erred in coming to a conclusion that the petitioner had been duly served in the suit and, therefore, the impugned judgment was liable to be set aside.

On the other hand, the learned counsel for the respondent has urged that the case in hand was duly covered under the provisions of Rule 13 of Order 9, second proviso and, therefore this Court ,would not interfere with the concurrent finding of the Courts below.

I have given a thoughtful consideration to the rival argument. Lower Court record has been perused and the provisions of Order 9, Rule 13, second proviso has been closely examined. From the perusal of the lower court record, following facts are evolved :-

(i) Gopi Chand, Process Server, R.W. 2, had delivered a copy of the summons only to Suleman, petitioner, in the presence of Alam Chand, R.W. 3; ,

(ii) It has been admitted by the said Process Server in his cross-examination that copy of the plaint had not been delivered to Suleman alongwith the copy of the summons; and

(iii) Summons exhibit R.W. 2/1 for 2.4.1980 was served upon Suleman, petitioner, on 6,3.1980. The suit was for specific performance of agreement of sale dated 2.6.1978 and for possession of agricultural land measuring 15 kanals 12 marlas for a sale consideration of Rs. 20,000/- out of which Rs. 7,000/-were paid at the time of execution of the said agreement and Rs. 12,000/- were left with the vendee for payment to the mortgagees Naresh Kumar etc. and Rs. 1,000/- was to be paid at the time of registration of the sale deed which was to be executed on or before 24.8.1979. The suit was instituted on 6.2.1980 and was decreed on 30.4.1980.

On the basis of the above facts, learned Sub Judge 1st Class, Gurgaon had come to the conclusion that defendant has been served on 6.3.1980 for appearing in the court on 2.4.1980 and therefore, he had kaowledge of the suit and consequently, he also had the knowledge of the exparte decree dated 30-4-1980. The learned First Appellate Court had also held that since defendant had duly been served in the case, he had the knowledge of the date of hearing and passing of the impugned exparte decree. The question doing rounds right now is as to whether in the facts and circumstance of this case it can be said that on receipt of the summons, without a copy of the plaint accompanying it, the petitioner could be said to have been duly served and it could be inferred that he had the knowledge of the nature of the claim of the plaintiff in the suit against him. Identical question was considered in Babu Ram Bhatnagar v. Satish Kumar Rawal, (1991 ) 100 P. L. R. 234. wherein it was held as under :--

"- - 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 circum- stances 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 be 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."

I have surgically examined the evidence on record in order to satisfy myself as to whether the plaintiff-respondent had affirmatively proved by producing categorical evidence that the defendant knew the exact claim made in the plaint and have come to the conclusion that there is not even an iota of evidence on record to show that the plaintiff had such knowledge. The plaintiff-respondent Alam Chand had stepped into the witness box as R.W 3. The examination in Chief of the said witness when translated into English would read somewhat as under :-

"Process Server has affected service on Suleman in my presence. Suleman had thumb marked the summons and I had attested it. The Court had issued summons through registered post also. The defendant had knowledge of the suit."

From the above it is evident that it was not the case of the plaintiff himself that the defendant Suleman had knowledge of the exact claim made in the plaint. Mere knowledge of tin: pendency of the suit, as stated by the plaintiff, would not prove that the defendant knew the exact claim made in the plaint when the copy of the summons was delivered to him.

Applying the ratio of Babu Ram Bhatnagar''s case (supra) to the facts and circumstances of the case in hand, I find :-

(i) that copy of the plaint was not delivered to the defendant along with the summons. On the summons it was mentioned that it was a suit for possession although as a matter of fact it was a suit for specific performance of contract of sale and for possession;

(ii) that the plaintiff has not been able to prove affirmatively by producing categorical evidence that the defendant knew the exact claim made in the plaint ;

(iii) that there is no evidence on record so as to make the Court feel satisfied that the exact nature of the claim was known to the defendant ;

(iv) it is not a very exceptional case where the second proviso of Rule 13 of Order 9, C. P. C. comes into play ; and

(v) that it cannot be said that the plaintiff had been duly served.

In view of the above findings, it can unhensitatingly be held that the courts below have gravely erred in holding that the case in hand was covered under the provisions of the second proviso to Rule 13 of Order 9 C. P. C. and thus, they had exercised jurisdiction vested in them with material irregularity.

Before parting with the judgment I would like to discuss the two Supreme Court judgments cited at the Bar by the learned counsel for the respondent. These are :-

(i) The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, .

(ii) The Municipal Corporation of Delhi Vs. Shri Suresh Chandra Jaipuria and Another, .

In the Managing Director''s case (supra) in a suit challenging the validity of enquiry ordered against him the plaintiff had applied for an interim order staying the operation of his suspension as well as the proceedings in the enquiry directed against him. The learned trial Judge had issued an interim ex parte order, as prayed for by him, but at later stage he revoked that order after hearing both the parties. In appeal the said order was modified and the defendant was directed to refrain from proceeding with the enquiry ordered till the decision of the suit but as regards suspension of the plaintiff it sustained the order of the trial Court, Both the parties had then gone in revision to the High Court of Andbra Pradesh. The High Court had accepted the revision petition of the plaintiff but rejected that of the defendant It stayed the operation of the suspension order as well as the proceedings in the enquiry. Then on appeal, the Hon''ble Supreme Court had found that the High Court had no jurisdiction to interfere with the order of the first appellate Court and that it was not the conclusion of the High Court that the appellate Court had no jurisdiction to make the order that it made.

Here in this case it has been found that the learned Court below had exercised jurisdiction vested in it illegally or at least with material irregularity inasmuch as it had found that the case was covered under the provisions of second proviso to Rule 13 of Order 9, C.P.C. Hence, the ratio of the above Supreme Court case is not applicable to the facts and circumstances of the case in hand.

In Municipal Corporation''s case (supra) the plaintiff had filed a suit for permanent injunction against the Municipal Corporation on the ground that assessment of house tax had processed on an erroneous basis. The trial Court and the Appellate Court refused to grant interim injunction to restrain the Corporation from realizing the same as the plaintiff could not make out the prima facie case. The High Court interfered with the concurrent finding and granted relief and in those circumstances it was held by their Lordships of the Supreme Court that interference by the High Court with concurrent finding was unjustified. But here in this case, as mentioned in the earlier part of the judgment, the suit was for specific performance of contract of sale and possession and the copy of the plaint was not delivered to the defendant alongwith the copy of summons perusal whereof shows that according to it was a suit for possession but the learned first appellate Court had returned a finding that the defendant had knowledge of the date of hearing and the passing of the ex parte decree.

in view of the above discussion, this revision petition is accepted and the impugned judgment is set aside. The parties through their counsel are directed to appear before the Senior Subordinate Judge, Gurgaon on 17.7.1992, on which date the defendant undertakes to file the written statement.

The record of the case be transferred backwards forthwith.

Since much time has already been lost, it is directed that the suit be decided expeditiously. Preferably within six months.

No costs.