Bal Raj Tuli, J. - (1.) TEK Chand Respondent filed a suit for the recovery of Rs. 7,590 against Shri Jagan Nath, Proprietor, Raj Kumar and Company (Defendant No. 1) and M/s. Raj Kumar and Company, Commission Agents, through Shri Jagan Nath, Ropar (Defendant No. 2), on October 17, 1970. The learned Sub -Judge on October 20, 1970, passed the following order: Present counsel for Plaintiff. Suit be registered. Dependent be summoned for 10th November, 1970. Counsel for the Plaintiff requests that summons be. issued by registered post. This be done. Registered covers in three days. On November 10, 1970, the following order was passed: Present counsel for the Plaintiff. Acknowledgment of registered cover not received back. Summonses of Defendants be issued again for 4th December, 1970. P. fee in three days. On December 4, 1970, the following order was passed: Present counsel for Plaintiff. Summons sent to the Defendant by registered post has been received back with the report that he has refused to receive it. He is absent. I am satisfied that the Defendant has been served but he is absent. Therefore ex -parte proceedings are taken against the Defendant. To come up for ex -parte evidence on 29th December, 1970. On December 29, 1970, ex -parte evidence was recorded and the suit of the Plaintiff was decreed against Jagan Nath (Defendant No. 1) alone on December 30, 1970. Jagan Nath filed an application under Order 9, Rule 13, Code of Civil Procedure for setting aside the ex -parte decree, on January 27, 1971, in which he pleaded that be was not served for December 30, 1970" and was not aware of the suit; that he came to know of the ex -parte decree passed against him on January 24, 1971 when a demand for the payment of the decretal amount was made by the decree -holder. He further pleaded that since he was not sewed personally with the process of the Court, he could not be aware of the suit and that the application was being presented within the statutory period of limitation. Tek Chand Respondent contested that application and stated that the Defendant -Petitioner was duly served for December 4, 1970, and as he intentionally did not appear on that date, the ex -parte proceedings had been rightly taken and there was no sufficient cause for setting aside the ex -parte decree. The learned trial Court framed the following issues: (1) Whether there is sufficient cause for setting aside the ex -parte decree? (2) Relief. After recording evidence the learned trial Court held that the Petitioner was served with the summons of the suit for December 4, 1970, because he refused to accept the registered envelope sent to him. It was also found that he had the knowledge of the suit because some talk about compromise was made in the month of November, 1970, but which did not succeed. On the evidence recorded the learned trial Court decided issue No. 1 against the Petitioner and dismissed his application on May 3, 1972. Against that decree the Petitioner filed an appeal which was dismissed by the learned District Judge, Chandigarh, on October 23, 1972. The present petition for revision has been directed against that order.
(2.) IN revision, this Court can interfere only if the case falls within one of the clauses of Section 115 of the Code of Civil Procedure. This section reads as under: Section 115. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears - - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. Clauses (a) and (b) of this section are not applicable, but the case, in my opinion, is covered by Clause (c). Order IX, Rule 13 of the Code of Civil Procedure prescribes for the setting aside of ex -parte decrees, and is in the following terms: 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 he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such Defendant only it may be set aside as against all or any of the other Defendants also. This rule has two parts viz., (i) if the Defendant was not duly served with the summons and (ii) if he was duly served but he was prevented by any sufficient cause from appearing, when the suit was called on for hearing. If the Defendant is able to make out any of the two conditions to the satisfaction of the Court, the Court has no option but to set aside the ex -parte decree. It is, therefore, to be seen whether the Petitioner as Defendant to the suit was duly served with the summons of the suit. Order V, Rule 1 of the Code of Civil Procedure provides that when a suit has been duly instituted, a summons may be issued to the Defendant to appear and answer the claim on a day to be therein specified. Every such summons has to be signed by the Judge or such officer as he appoints, and has to bear the seal of the Court. It follows that the summons is meant to inform the Defendant that a suit has been instituted against him which has been fixed for his appearance on a certain date of which intimation is being given to him by the summons. Rule 2 of Order V provides that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. The reading of these two rules together leads to the conclusion that a summons shall be deemed to have been duly served only if the summons along with the copy of the plaint or a concise statement thereof, if permitted, is served on the Defendant or tendered to him. If only summons is tendered to him or is served on him, it cannot be said that there has been 'due service' of the summons on the Defendant. The service of the summons, by registered post, on the Defendant is permissible under Order V, Rule 10 of the Code of Civil Procedure, as amended by this Court and under Order V, Rule 20A of the Code, the court is entitled to hold that the summons has been served if the Defendant refuses to receive the postal envelope when tendered to him and the postal employee returns that envelope to the Court with the endorsement that it had been refused by the Defendant when it was tendered to him. It is stated by the learned District Judge in his order that the learned Counsel for the Petitioners did not seek to challenge the findings of fact, recorded by the trial Court, that the registered cover sent to the Defendant was, in fact, refused by him and that the Petitioner knew that a suit had been filed against him by the Plaintiff -Respondent because he was approached by the Plaintiff for compromise along with Shri Tirath Ram, who appeared as his witness before the learned trial Court. On the basis of these two facts, the learned trial Court as well as the learned District Judge have held that the Petitioner had failed to make out any sufficient cause for setting aside the ex -parte decree passed against him.
(3.) IT is really unfortunate that neither the learned trial Court nor the learned District Judge opened the registered envelope which had been sent to the Petitioner for December 4, 1970, and which had been returned by the postman with the remark 'refused'. I have opened that envelope in the presence of the counsel for the parties and found that only summons was sent to the Petitioner in that envelope without a copy of the plaint. Even if it is presumed that the Petitioner has been served with the summons because of his refusal to accept the registered envelope, all that can be deemed is that he, was served with the summons of the suit under Order V, Rule 1, Code of Civil Procedure but without a copy of the plaint, which was necessary to be sent to him along with the summons under Rule 2 of Order V, in order to constitute 'due service'. Mere service of the summons is not synonymous with 'due service' as used in Order IX, Rule 13 of the Code of Civil Procedure. Merely because the Defendant had been served with a summons of the suit without a copy of the plaint, the learned trial Court had no jurisdiction to proceed to decide it ex -parte. That could be done only if the Defendant had been "duly served", that is, he had been served with the summons along with a copy of the plaint. Refusal to take delivery of the notice sent by registered post can he deemed to be prima facie proof of service of the document sent in that registered envelope, but not of any other document which was required under the law to accompany that document but did not. No such finding was recorded by the learned trial Court before ordering ex parte proceedings. In the present case, it cannot be presumed or deemed that he was served with the copy of the plaint also along with the summons. In his order dated May 3, 1972, dismissing the application of the Petitioner under Order 9, Rule 13, Code of Civil Procedure the learned trial Court merely held that "the Defendant has utterly failed to show that he was not served and that there is sufficient cause for setting aside the ex parte decree." No finding has been recorded that the summons had been duly served on the Petitioner. The learned District Judge has also not recorded any such finding in his appellate order. Evidently, the attention of the Courts below was not drawn to the fact that 'mere service' is different from 'due service', as contemplated by Order IX, Rule 13, Code of Civil Procedure. The requirement of Rule 2 of Order V of the Code that a copy of the plaint shall accompany the summons is meant to inform the Defendant as to the nature of the suit filed against him so as to enable him to decide whether to defend the same or not. It is for this reason that 'mere service' of the summons is not considered to be 'due service' to empower a Court to take ex parte proceedings against the Defendant.;