GANPAT LAL Vs. RAJESHWARI AGARWAL

JUDGEMENT

(1.) The law is not a brooding omnipotence in the sky but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory process.

(2.) In the instant case, effort to interpret second proviso of Order 9 Rule 13 CPC, has to be made. By the Code of Civil Procedure (Amendment) Act 1976, a second proviso has been added to the Rule 13 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 notice of the date of hearing of the suit.

(3.) The petitioner (tenant) was the defendant in the suit before the trial court on Sept. 25, 1987 the court issued summons fixing Sept. 26, 1987 for the hearing of the suit. As per process server's report, endorsed at the back of summons, the petitioner refused to accept service therefore, copy of summons was affixed on the open shop of the petitioner. Names and addresses of Sohan Das (husband of plaintiff landlord) and Kripa Nath Bhargava have been mentioned showing that copy of summons was affixed in their presence. It appears from the perusal of the report of process server that he effected the aforesaid service on Sept. 26, 1987. However, it has not been mentioned, at what time he reached at the shop for effecting the service of summons on the petitioner. On Sept. 26, 1987 when the suit was placed before the trial court, it was ordered that summons had been duly served. As no one was present on behalf of the defendant- petitioner, the case was posted for Sept. 29, 1987 for passing the appropriate orders. The petitioner was proceeded ex-parte on Sept. 29, 1987. The evidence of Sohan Das the husband of the plaintiff landlord, was recorded and thereafter an ex-parte decree was passed on Nov. 19, 1987.