Vedantha Gounder vs Dhanapal and others

Paul, J.—It appears from the records that the first hearing of the suit O.S. No. 372 of 1972 was to be on 24th April 1972. The suit was for recovery of a sum of Rs. 4800 as mesne profits for the period 1969-70 and 1970-71. But, the summons were not personally served on the respondents; but were affixed to the outer door of the dwelling, since they were absent at that place of residence. Fresh summons were thereupon ordered for the bearing on 12th June 1972. The evidence of the process server R.W.2 who claimed to have served the suit summons on the respondents for that hearing has been accepted by the learned District Munsif, and there is the endorsement of the process server R.W.2 which supports his testimony that the suit summons were served on the respondents personally and their signatures were obtained in Ex. C.1. But, it is found that as required by O.5 R.2 C.P.C., the suit summons were not accompanied by a copy of the plaint or by a concise statement of the claim, for, the three copies of the plaint filed by the plaintiff were still found intact in the bundle and the entry in the register Ex. A-1 did not disclose that copies of the plaint were served on the respondents. Therefore, the learned District Munsif while finding that the summon were served on the respondents, held that copies of the plaint were not served on them as required by O.5 R.2, C.P.C., and on that ground, the he set aside the ex parte decree passed against the respondents after referring to two decisions of this Court in S. Ameeran Sahib and Another Vs. Somanatha Nadar, and Pichai Ammal Vs. Vellayya Thevar alias Ochu Thevar, .

O. 9 R. 13 runs 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 be was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shell make an order setting aside the decree as against him...

O.5 R.2 C.P. C. says that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. This is a mandatory provision Therefore, when summons were served on the defendants without a copy of the plaint or a concise statement, that would not be a proper service. Therefore, it has to be held that it the circumstances of the case the defendants have satisfied the court that the summons were not duly served on them. Therefore, the learned District Munsif was right in having allowed the petition filed under S.5 of the Limitation Act to condone the delay in filing the petition under O.9, R.13 C.P.C. and the petition filed under O.9. R. 13 C.P.C. to set aside the ex parte decree passed against the defendants There are no grounds for interference. The civil revision petitions fail and they are dismissed. There will be no order as to costs in both the petitions.

Since the suit has already been delayed it is directed that the suit shall be disposed of in two months from the date of the receipt of the records by tile trial court.