- (1.) THIS revision petition under Section 115, CPC is directed against the order dated 23. 3. 93 passed by Shri Prashant Kumar Agarwal, Additional District Judge No. 3, Kota in Civil Misc. Appeal No. 137/90 whereby the appeal filed by the defendant-petitioner has been dismissed and the judgment of AMJM No. l, Kota North, Kota dated 4. 12. 90 in Civil Suit No. 413/90 dismissing the application dated 22. 10. 81 of the defendant-petitioner for setting aside the ex-parte decree, has been upheld.
(2.) THIS is second round of litigation between the parties before this Court. Earlier a revision petition No. 87/92 Madan Lal vs. Prem Chand was decided by this Court on 27. 4. 87 against the order dated 7. 11. 81. The ex-parte decree was sought to be set-aside by moving an application for setting aside the ex-parte decree under Ordear 9 Rule 13 CPC. The learned trial court vide order dated 7. 11. 81 set-aside the ex-parte decree. Against this order dated 7. 11. 81 the plaintiff preferred a revision petition before the High Court being S. B. Civil Revision No. 87/82. THIS revision petition No. 87/82 was decided on 27. 4. 87 and the High Court while deciding the revision petition observed that from the finding recorded by the trial court it was clear that the summons having been served on the defendant for hearing of the suit on 18. 2. 81, the defendant had notice of the date of the suit no doubt in the absence of the copy of the plaint the defendant had to obtain further information about the suit, even though he knew that such a suit had been filed against him of which the particulars were given in the summons. In such a situation, it was incumbent on the trial court to further examine whether on these facts the defendant having notice of the date of hearing of the suit also had sufficient time to appear and answer the plaintiffs claim? The Revision Petition No. 87/82 was allowed and the trial court's order dated 7. 11. 81 was set aside and the matter was remanded back to the trial court with the direction that trial court shall now proceed to decide afresh the defendant's application under Order 9 Rule 13 CPC in accordance with law after giving requisite opportunity to both the sides. The trial court, therefore, considered the matter afresh as directed by the High Court and has passed the order dated 23. 3. 93 against which the present revision petition has been preferred. I have heard learned counsel for both the sides. It is not disputed that the summons for the date of 18. 2. 81 had been served upon the defendant on 20. 12. 80 that is about 2 months in advance. It is not in dispute that the summons did not accompany the copy of the plaint. It appears that taking advantage of this situation defendant did not appear before the Court on the next date of hearing which was mentioned in the summons i. e. 14. 5. 81. The question which has to be considered as to whether the order dated 23. 3. 93 which has been passed by the learned Additional District and Sessions Judge, No. 3, Kota warrants any interference under Section 115 CPC on account of the provisions of Order 5 Rule 2 read with Order 9 Rule 13 CPC. Mr. Mehrish has argued that the requirement is that the copy of the plaint be annexed with the summons is a mandatory requirement under Order 5 Rule 2 and so far as the provision of Order 9 Rule 13 CPC are concerned could not be invoked in this case. Mr. Mehrish has submitted that in want of copies of the plaint as enclosed with the summons, it is case of no service in the eye of law and therefore, the absence of a copy of the plaint with the summons is not an irregularity but an illegality and if the copy of the plaint is not enclosed with the summons it has to be taken as if there was no service. The provisions of Order 5 Rule 2 CPC and Order 9 Rule 13 CPC are reproduced as under: - "order 5 Rule 2: A defendant to whom a summons has been issued under sub-rule (1) may appear- (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. Order 9 Rule 13: Setting aside decree ex-parte against defendant, - 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 up on 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 further that no court shall set-aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. " As against this Mr. Bardhar has argued that once the servive of the summons had been effected, well in time, defendant would have been well advised to appear before the court on the next date fixed in the summons and should have asked for the copy of the plaintiff at -all the copy of the plaint was not enclosed with the summons and he could not take the advantage himself for not appearing before the Court despite the knowledge of the date on which the matter was fixed before the Court and he has submitted that this is only an irregularity and therefore the decree should not have been set-aside when he had sufficient time on account of time got between the date of appearance for which the summons had been served. Mr. Bardhar submits that it is a simple case of irregularity and the matter is fully covered by the second proviso under Order 9 Rule 13 CPC. I have considered the submissions with regard to the provisions of Order 5 Rule 2 CPC and second proviso under Order 9 Rule 13 CPC. While it has to be agreed on all hands that according to the provisions contained in Order 5 Rule 2 CPC the summons should be served upon the defendant and the same should invariably be accompanied with the copy of the plaint, the fact cannot be lost sight of that though legislature has not laid down any provision of penal consequences with the Order Rule 2 CPC to the effect that in case summons are not accompanied by the copy of the plaint what will be the penal consequences. In absence of the penal consequences when the service had been effected well in advance it is expected from the defendant to whom the summons had been served for a particular date to approach the Court and ask for copy of the plaint. It may be a good ground for him to seek adjournment and it may also be a good ground to say that the date which is fixed in the summons should not be treated to be the first date of hearing. Therefore, in my opinion even if the non-enclosure of the copy of the plaint, is an illegality it is in the nature of an irregularity which can be rectified and corrected for mere askance for the copy of the plaint by putting appearance before the Court and such an irregularity cannot be used as a ground for setting aside the ex-parte decree when it is found that the defendant had sufficient, time to approach the Court and ask for copy of the plaint. According to second proviso under Order 9 Rule 13 CPC no Court shall set-aside the decree passed ex-parte merely on the ground that there has been an irregularity in the service of the summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Apart from the clear language of second proviso under Order 9 Rule 13 CPC it may be noticed that in the instant case while deciding the revision petition No. 87/82 it had been made clear that the impugned-order dated 7. 11. 87 againt which the earlier revision petition had been filed did not contain the finding as to whether the defendant had sufficient time to appear and answer the plaintiff's claim and therefore in the absence of such finding the impugned-order was not sustained. Now, the Additional District & Sessions Judge No. 3, Kota while passing the impunged-order dated 7. 11. 87 in Civil Misc. Appeal No. 137/90 has categorically mentioned that the knowledge with regard to the pendency of the suit was there way back on 20. 12. 80 for the date of hearing on 18. 2. 1981 and thus there was a sufficient time and hence there was no illegality nor any factual error and therefore no ground is made out for any interference in the order which has been passed by the subordinate court. It was also observed that the trial Court had passed the order in accordance with the order dated 27. 4. 87 passed by this High Court. In my opinion the reasoning given in this order is absolutely right and there is no basis to interfere with the same.
(3.) MY attention has been invited to Harinarayan Vs. Lallu Narayan (1 ). This is the decision of the Rajasthan High Court in which it has been held as under: - "if, the summons is not accompanied by a copy of the plaint, the defendant will not be able to answer the plaintiffs claim on the day specified in the summons for the purpose. Every summons should necessarily be accompanied by a copy of the plaint, and if it is found that the summons was not "duly served", the court has to postpone the case and order the plaintiff to pay the costs thereof. It follows that February 22, 1971 and July 27, 1972 which were the days fixed in the summonses under Order V, RR. 1 and 6 CPC for the appearance of the defendants, could not be taken to be first date of hearing in the facts and circumstances of these cases inasmuch as the summonses had not been "duly served" in accordance with the requirement of the law". Thus, in my considered opinion, if the summonses are not accompanied by a copy of the plaint, it does not vitiate the service in the eye of law. If the summonses are served in time and the defendant has ample opportunity to approach the Court he should appear and ask for a copy of the plaint so as to answer the claim of the plaintiff before the fixed date, it cannot be said that even in such a case it is an illegality which cannot be cured or it will not be a matter which may be covered under second proviso of Order 9 Rule 13 CPC. I am of the opinion that if the summonses are served for a particular date without the copy of the plaint it cannot be said that any basic principle of jurisprudence or basic principle of law stands flouted resulting into an incurable prejudice and in my considered opinion even if it is an illegality it is in the nature of irregularity which can be cured well in time without any loss to any party. ;