Decided on December 11,1957

M.G.DUA Respondents


- (1.) THIS is an appeal from an order of Sub Judge First Class, Kamal (at Panipat), refusing to set aside an ex parte decree under order 9 Rule 13, Civil Procedure code. Messrs. Bali Mal Nawal Kishore respondent brought a suit in the Court of sub Judge, Panipat, for recovery or Rs. 8,000/- on the basis of bahi accounts against Messrs. M. G. Dua of Bombay the appellant. The suit was instituted on 2nd february, 1950. The defendants were directed to be summoned for 10th March, 1955. Since the presiding officer was to be on leave that day, the case was ordered to be put up on the 22nd March, 1955. On this later date the summonses had not been served. Summonses for appearance of the defendant on 26th April, 1955, were ordered to be sent by registered post. The defendant did not appear on 26th, though he had received the registered cover. Ex parte proceedings were therefore ordered. After recording some evidence of the plaintiff on the adjourned hearing viz. 29th April, 1955, the Court passed an ex parte decree for the full amount against the defendant. On 21st May, 1955, the defendant presented an application for setting aside the ex parte decree alleging that he was prevented by sufficient cause from appearing in Court on 26th April, 1955. In support of his application, the defendant gave his own statement on oath. He stated that the registered cover did not contain a copy of the plaint. He therefore contacted his solicitors. The solicitors wrote a letter to the Court and another to the plaintiff requesting that a copy of the plaint be supplied to the defendant and also praying for an adjournment in the case. On the advice given to him by the solicitors, the defendant did not deem it necessary to appear on the date fixed- in the case at Panipat. He further stated that he had already filed a suit against the plaintiff in the Court of City Civil Judge, Bombay, on the same subject matter, and he wanted to apply to the Court at Bombay for an order staying the suit instituted against him in Panipat. No evidence was given in rebuttal. The learned Sub Judge did not consider the reasons to be sufficient and dismissed the application.
(2.) MR. Manchanda, learned counsel for the appellant, in the first instance, contends that the defendant had not been duly served and therefore ex parte proceedings under Order 9 Rule 6, Civil Procedure Code, could not be ordered. The contention is not without force. Section 27 of the Civil Procedure Code lays down that where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and it may be served in the manner prescribed. Order 5 of the First Schedule prescribes the manner in which service is to be effected. Rule 2 of the Order 5 says --"* * *every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. " evidently, no copy of the plaint was sent to the defendant along with the summons. It is so stated by the plaintiff and the fact was mentioned in the letters written by his solicitors to the Court and to the plaintiff. Ex parte proceedings under Order 9 Rule 6, Civil Procedure Code, can only be taken where the defendant does not appear when the suit is called for hearing, if it is proved that the summons was duly served. A summons cannot be regarded as duly served, unless it is accompanied by a copy of the plaint. Without a copy of the plaint, the defendant had no means of knowing as to what was the nature of the suit and deciding whether it was at all necessary for him to defend it.
(3.) THERE is yet another reason for holding that the defendant was not duly served. The service, in the first instance, was directed to be made in the ordinary mode, by personal service on the defendant. It was only on the second or the third hearing that summonses were ordered to be sent by registered post. This contravened the proviso added to Order 5 Rule 10, Civil Procedure Code, in this State. The proviso says-- "provided that in any case if the plaintiff so wishes, the Court may serve the summons in the first instance by registered post (acknowledgment due) instead of in the mode of service laid down in this rule. " It means that the summons shall be sent by registered post only in the first instance, if it is so wished by the plaintiff. If any other mode of service was tried in the first instance and if it failed to yield any fruitful result, it is not open to the court, in view of the prohibition contained in the proviso, to endeavour to effect service on the defendant by registered post (Mohan Lal v. Sundar Lal Nand Lal, air 1949 E. P. 295 ).;

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