SHINGHAL, J. - (1.) THESE two revision petitions of the defendants have been heard together at the instance of the learned counsel for- the parties, and will be disposed of by this judgment. A common question of law arises in both the petitions, and as it is the sole point of controversy between the parties, they may be said to be companion petitions in that sense. I shall, however, make a brief reference to the relevant tacts of both the cases separately so that the common question of law may be examined in its proper perspective.
(2.) IN S. B. Civil Revision petition No. 128 of 1973, the non-petitioners Lallu Narain and Mohan Lal instituted a suit against petitioner Hari Narain on November 7, 1970, for his eviction from the suit house, alleging that he had committed default in the payment of the rent for a period exceeding six months and had created a nuisance in the suit premises. The trial court, ordered the issue of summons to the defendant (petitioner) to appear and answer the claim on 22-2-1971. The defendant appeared in the court on that date, and his learned counsel brought to the notice of the court that he had not been supplied with a copy of the plaint and that a copy may be delivered to him. The plaintiff or his learned Counsel did not raise any objection, and the court made an order directing the plaintiff's counsel to supply a copy of the plaint to the defendant. March 10, 1971 was fixed for the filing of the written statement. It is not disputed that a copy of the plaint was given to the counsel for the defendant on March 4, 1971. When the case came up for hearing in the trial court on March 10, 1971, the defendant made an application under sec. 13 (5) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, hereinafter referred to as "the Act", and he also filed a written statement denying the plaintiffs' claim in the suit. IN his application under sec. 13 (5) of the act, the defendant raised a dispute regarding the rate of the rent, the claim as to the arrears and the amount of the arrears, and prayed that the court may determine the amount payable by him and grant time for the payment. The plaintiffs opposed the application by a written reply in which they stated that a copy of the plaint had been sent to the defendant with the summons and had been delivered to him, end the defendant know about the suit and should have inspected the file. It was therefore urged that the defendant was not entitled to the benefit of sec. 13 (5) of the Act. The trial court examined the controversy and passed an order on March 29, 1972 Determining that the rate of the rent was Rs. 25/-per mensem and directing that it was payable from December 1, 1969, along with interest 6% per annum A period of 15 days was allowed to the defendant to deposit the arrears, and the deposit was admittedly made within that time limit on April 11, 1972. The plaintiffs felt aggrieved and preferred an appeal. It was heard by Additional District Judge No. 3, Jaipur City, who allowed the appeal by his impugned judgment dated January 31, 1973 set aside the order of the trial court dated March 29, 1972, and dismissed he application of the defendant under sec. 13 (5) of the Act. This is why defendant Hari Narain has applied for a revision of the appellate court's judgment. In S. B. Civil revision petition No. 128 of 1974 also the suit was instituted by the plaintiff for eviction of the defendant (petitioner) from the suit house, on February 17, 1972. It was alleged that the defendant had committed default in the payment of the rent, and the premises were required reasonably and bona fide by the plaintiff for his own use. The trial court directed the issue of summons to the defendant to appear and answer the claim on July 27, 1972. The summons was served on the defendant; on July 3, 1972 when an endorsement was made by him that he had not received a copy of the plaint along with the summons. The defendant appeared in the trial court on July 27, 1972, and the court made an order, in the presence of the learned counsel for the parties, that the defendant had not received a capy of the plaint and that the plaintiff should give him the copy. At the same time, October 3, 1972 was fixed for the filing of the written statement. The plaintiff or his counsel were not present on that date. The defendant was present and he made an application under sec. 13 (5) of the Act requesting the court to determine the amount of the rent payable by him so that it might be deposited by him. The suit was dismissed for default of the plaintiff's appearance. The plaintiff applied for its restoration and it is not in dispute that an order was made for its restoration. It is also not in dispute that the defendant's application dated October 3, 1972 under sec. 13 (5) of the Act was not disposed of but he deposited Rs. 1,114/- on account of rent and interest on October 7, 1972. It is no body's case that that amount was insufficient in any respect. The plaintiff, however, filed an application on November 24, 1972, u/s. 13 (6) of the Act, praying that the defence may be struck off as the defendant had not made the necessary deposit on July 27, 1972. The defendant opposed that application in a detailed reply. The trial court allowed the plaintiff's application by its order dated February 20, 1973 and struck off the defence holding that July 27, 1972 was the first day of hearing of the suit and the defendant failed to make the deposit required by sub-sec. (4) of sec 13 on that date The defendant filed an appeal, but it was dismissed by District Judge, Jaipur City, on December 13, 1973, as he also took the view that July 27, 1972 was the first day of hearing and the defendant failed to deposit the arrears of rent with interest on that day. Defendant Nand Kishore Jaipuria has therefore approached this Court for a revision of the impugned order. As has been stated, in both these cases the summonses were issued to the petitioners for appearing and answering the claims in the suits on February 22, 1971 (in Civil revision petition No. 128 of 1973) and July 27, 1972 (in Civil revision petition No. 128 of 1974 ). It was represented to the Court in both the cases, on the aforesaid days that the defendants had not been supplied with copies of the plaints, and that contention was allowed to go unchallenged so that the trial court had to pass orders directing the plaintiff (s) to supply the copies of the plaints to the defendants. The question therefore is whether the defendants could be said to have been served with the summonses on February 22, 1971 and July 27, 1972, even though the summonses were not accompanied by copies of the plaints, and whether they were the first days of hearing of the suits? Order V of the Code of Civil Procedure deals with the issue and service of summons. R. 1 of that Order 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. R. 2 provides that " Every summons shall be accompanied by a copy of the plaint. " It follows, therefore, that if a summons is not accompanied by a copy of the plaint, its service shall not be service in accordance with the requirement of the law. This is evident from the further fact that R. 6 of O. V provides that the day for the appearance of the defendant shall, inter alia, be "so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day. " If, therefore, the summons is not accompanied by a copy of the plaint, the defendant will not be able to "answer" the plaintiff's claim on the day specified in the summons for the purpose. Reference in this connection may also be made to the provisions of O. IX, R 6 (2) C. P. C. which provides that where it is owing to the plaintiff's default that the summons was not "duly served" or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement. It is therefore clear from the aforesaid provisions of the Code of Civil Procedure that 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 O. 5, Rules 1 and 6 C. P. C. for the appearance of the defendants, could not be taken to be the first days of hearing in the facts and circumstances of these cases inasmuch as the summonses had not been "duly surved" in accordance with the requirement of the law. There is another reason for this view. Sub-sec. (4) of sec. 13 of the Act makes it obligatory for the tenant to deposit in court or pay to the landlord the amount referred to in the sub-section or to make an application to the court for fixing the date of payment. The tenant is therefore required to act under that sub-section on the first day of hearing so that he may be able to take the benefit of sub-sec. (7) of sec. 13 and save himself from a decree for his eviction on the ground specified in clause (a) of sub-sec. (1 ). Similarly, the benefit of sub-sec. (7) is available to a tenant if he avails of the provisions of sub-sec. (5) of sec. 13 which also contemplates the making of an application on the first day of hearing. But it cannot be the intention of sub-sec. (4) and (5) of sec. 13 that the tenant should forfeit the aforesaid benefit simply because the plaintiff does not file a copy of the plaint with the summons or, for some reason, the summons served on his is not accompanied by a copy of the plaint. If, in such a case, the defendant appears on the day specified in the summons, reports to the court that the summons was not accompanied by a copy of the plaint and asks for a copy, that is ail he can do in the circumstances of the case. I have no doubt therefore that is such a case the first day of hearing would be the first day fixed for the appearance of the defendant after the supply of the copy of the plaint to him. Any other view of the provisions of sub-sec. (4) and (5) of sec. 13 will render them naga-tory at the hands of an unscrupulous plaintiff who may file the summons without a copy of the plaint or see to it that the summons served on the defendant is not accompanied by a copy of the plaint.
(3.) THE view I have taken finds supports from the decision in M. G Bux vs. Balli Mal Nawal Kishore (l) where it has been held that the summons cannot be regarded as "duly served" unless it is accompanied by a copy of the plaint. A similar view has been taken in Jagat Ram Hamir Chand vs. Shanti Sarup (2) and Jagannath vs. Tek Chand (3) although the expression "due service" came up for consideration in those cases in somewhat different circumstances. THE decisions are not, however, beside the point for, as has been stated, R. 6 (2) of O. IX, C. P. C. also provides for due service of summons on pain of payment of costs by the plaintiff. Reference may also be made to Shevaram Thadharam Jaisinghani vs. Indian Oil Corporation Ltd. (4) where it has been held that the summons had not been properly served as it was not accompanied by a copy of the plaint as required by O. V R 2 C P. C. An attempt was made by the learned counsel for the non-petitioners to contend that even if February 22, 1971 and July 27, 1972 were not taken to be the first days of hearing, the defendants should have complied with the requirement of sub-sec. (4) of sec. 13 of the Act if they wanted to avoid eviction on the ground of the default in the payment of the rent, and that they can not claim the benefit of sub-sec. (5) as there was really no dispute as to the amount of the rent payable by them. The argument is untenable because in civil revision petition No. 128 of 1973 the defendant made an application under sub-sec. (5) of sec. 13 in which he disputed the rate of rent, the claim that it was in arrears, as well as the amount of the arrears, while in civil revision petition No. 126 of 1974 the defendant not only disputed the plantiff's claim that he was a defaulter but also stated that he had deposited the rent under sec. 19 A of the Act and was prepared to deposit whatever amount was determined by the Court to be due on account of the rent and interest. As has been held by this Court in Saligram vs. Narottam Lal (5) and Martin & Harris (Pvt) Ltd. vs. Prem Chand (6), if a tenant is made to deposit the rent under sec. 19 A of the Act, he can point that out in his application made on the first day of hearing and the Court can direct the payment of the rent already deposited under sec. 19a to the landlord, or allow its adjustment, so that such payment or adjustment has to be directed or allowed by the Court. There is therefore no justification for the argument that it was necessary for the defendants to have calculated for themselves what amounts were payable to the plaintiffs on account of rent and interest without recourse to the provisions of sub-sec. (5) of sec. 13 of the Act even in cases where there was a dispute as to the amount of the rent or arrears payable by them and the dispute called lor determination by an order of the Court under sub-sec. (5) of sec. 13. It follows that the learned appellate judges acted in the exercise of their jurisdiction illegally in holding that 22-2-1971 and July 27, 1972 were the fixed days of hearing in these two cases. In Hari Narain's case, the first day of hearing was March 10, 1971 and in Nand Kishore Jaipuria's case that day was October 3, 1972. As on those days the defendants made their applications under sub-sec. (5) of sec. 13, both the revision petitions are allowed. In civil Revision petition No. 128 of 1973 the impugned order of the appellate court dated January 31, 1973 is set aside and the order of the trial court dated March 29, 1972 is restored, while in Civil Revision petition No. 128 of 1974 the orders of the two courts below striking of the defence are set aside and the trial court is directed to dispose of the petitioner's application dated October 3, 1972, under sec, 13 (5) of the Action accordance with the law as early as possible. The petitioners shall be entitled to their costs from the non-petiti-oneis. . ;