Navin Chandra Sharma, J. - (1.) Respondents in this Miscellaneous Appeal has instituted Civil Suit No. 3/85 in the Court of the District Judge, Balotra, against the appellant on December 17, 1984, for the recovery of a sum of Rs. 17,978/-. There was an office report that the plaint, which had been filed by the respondents, was in English language and no Hindi translation of the plaint had been filed. It appears that Hindi translation of the plaint was filed by the respondents on January 14, 1985. The process-fee had already been filed on December 17, 1981. It further appears that summons of the suit along with copy of the plaint in English and its Hindi translation were issued to the appellant through its Balotra Branch. The summons along with copy of the plaint was received by someone on behalf of Lunia Transport Company, near bus Stand, Balotra and the process-server made an endorsement that the recipient of the summons noted that Lunia Transport Company had no connection with the appellant M/s. Jain Transport Organisation, Kalakar Street, Calcutta. This summons was for appearance on February 22, 1985. From the recital of above facts, it is clear that there was no service of summons on the defendant-appellant through the summons issued from the Court of the District Judge, Balotra on January 1985 and served on Lunia Transport Company on 29th January, 1935 along with copy of the plaint. There is nothing to show on the record that actually any summons along with copy of the plaint was sent to the defendant-appellant at Calcutta. It was on 22nd February, 1985, that the District Judge, Balotra, ordered that summons may be sent to the defendant at its Head Office at Calcutta on filing of the process-fee and simultaneously, one more summons may be sent to the defendant at its Calcutta address by registered post, and the next date fixed was 16th April, 1985. No summons were sent to the defendant-appellant in ordinary course at its Head Office of Calcutta. However, it appears that summons of the suit were sent to the defendant-appellant at its Calcutta Head Office address by registered post and an acknowledgement receipt bearing signatures of the recipient dated 25th March, 1985 was received by the District Judge, Bolotra in token of the service of summons sent by registered post to the defendant. The District Judge treated this service as sufficient and as the defendant, despite service, was absent, he was proceeded ex parte. On May 24, 1985, statement of Sampat Singh Shekhawat (P.W. 1) was recorded on behalf of the plaintiff in ex parte evidence and on that very day, an ex parte decree was passed against the defendant-appellant by the District Judge, Balotra for Rs. 17,978/- with costs along with Judge, Balotra for Rs. 17,978/- with costs along with pendente lite and future interest at 6% per annum.
(2.) The defendant-appellant through its Administrative Officer at Jaipur, filed an application under O. IX, R. 13 CPC, on November 30, 1985 in the Court of the District Judge, Balotra, for setting aside the ex parte decree passed against the defendant on May 24, 1985. The grounds for setting aside the ex parte decree, as given by the defendant-appellant in his application under O.IX. R. 13, CPC, were that it had no Branch Office at Balotra and the plaintiff deliberately got summons issued to alleged Balotra Branch It was stated that the Administrative Office of the defendant was at Jaipur and it was within the knowledge of the plaintiffs. However, they did not get any summons issued and served at the Administrative Office of the defendant at Jaipur. It was admitted that the defendant's Head Office is at Calcutta. It was not disputed that summons were received at Calcutta by the defendant, but it was alleged that copy of the plaint was net served up an the defendant along with summons. It was further alleged that sufficient time was not allowed to the defendant to before the Court of the District Judge, Balotra in the summons and as such, the service could not be regarded as due service of summons. The defendant pleaded in his application that he came to know of the ex parte decree on October 30, 1985, when the defendant had moved an application for setting aside the ex parte decree in the Civil Court at Balotra and the counsel for the plaintiffs gave him information about the ex parte decree in in this suit. The defendant on the above grounds prayed for setting aside of the ex parte decree passed by the District Judge on May 24, 1985. This application of the defendant was contested by the plaintiffs by fixing a reply on January 20, 1986. The plaintiffs stated that defendant's Branch Office was at Balotra and Head Office was at Calcutta and at both the places, summonses were duly served on the defendant. Despite service, the defendant did not appear on the dates on which he was required to appear before the Court and the Court proceeded ex parte against the defendant and passed the ex parte decree. In any event, it was pleaded by the plaintiffs that the application of the defendant for setting aside the ex parte decree dated May 24, 1985, was barred by limitation because while the decree had been passed on May 24, 1985, the application for setting aside the ex parte decree was made by the defendant before the District Judge, Balotra, on November 30, 1985. The application was clearly stated to be barred by limitation.
(3.) A narration of the above facts would go to show that there was no due service of summons on the defendant-appellant. O.V., R. 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. It further provides that where a summons has been issued, the Court may direct the defendant to file the written statement of his defence, if any, on that date of his appearance and cause an entry to be made to that effect in the summons. Rule 2 of O.V. provides that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. The object of providing that every summons should be accompanied by a copy of the plaint or, if so permitted, by a concise statement is to enable the defendant to appear and answer the claim of the plaintiff and if so required, file the written-statement. It is the plaint, which contains a statement in a concise form of the material facts on which the party pleading relies for his claim and it contains necessary particulars in cases where it is necessary to provide general or special particulars. Rules 9 to 19 of O.V. of the Code make provision for service of summons where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction, who is empowered to accept the service of the summons. Head Office of the defendant appellant is admittedly at Calcutta. Thus, the defendant did not reside within the jurisdiction of the Court of the District Judges, Balotra. According to the defendant, its Administrative Office was at Jaipur. Jaipur was also not within the jurisdiction of the Court of District Judge, Balotra and, consequently, the provisions contained in Orders 9 to 19-A of Orders 5 did not apply. It was either rule 21 or rule 22 of O.V. of the Code, which applies. Rule 21 of O.V. provides for service of summons where defendant resides within the jurisdiction of another Court and rule 22 deals with service within former presidency-towns of summons issued by Courts outside. Summons in the instant case has been issued by the Court of District Judge, Balotra. It is established beyond the limits of the towns of Calcutta, Madras and Bombay and it is provided in rule 22 of O.V, that in such cases, the summon are to be served within the above towns by sending the same to the Court of Small Causes within whose jurisdiction it is to be served. In the instant case, no summons was sent to the defendant for being served of him to the Court of Small Causes, Calcutta within whose jurisdiction it was to be served. No summons was sent to the Administrative Officer of the defendant at Jaipur in accordance with O.V. rule 21 by sending the summons by the District Judge either by one of its officers or by post to a Court having jurisdiction where even the defendant's agent resided. The duty of the Court to which summons are sent under rule 21 or rule 22 is specified in rule 23 and it has been made incumbent upon them that upon receipt of the summons, such Court shall proceed as the summons had been issued by such Court and shall then return the summons to the Court of issue, together with the record (if any) of the proceedings with regard thereto. It is no-where provided in the Code of Civil Procedure that where summons are issued by any Court established beyond the limits of the towns of Calcutta, Madras and Bombay that it can send the summons by registered post directly to the defendant. The only mode of service provided is that in such cast issuing Court has to send the summons to the Court of Small Causes of the towns concerned and direct service on the defendant by registered post of summons was not a service of summons on the defendant according to Rules. However, it may be mentioned here that second proviso to O. IX R. 13 of the Code provides that no Court shall set aside a decree passed ex parte merely on the ground the 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 plaintiff's claim. The non sending of the summons to the defendant for service through the Court of Small Causes, Calcutta was nothing more than an irregularity in the service of summons and only on account of this irregularity, no Court can set aside an ex parte decree. But this proviso is subject to further conditions. The further conditions are that the Court should be satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. The form of the summons would go to show that the defendant was required to appear either in person or through counsel, who may be conversant with the facts of the case or who may be accompanied by a person who may be able to answer any matter to reply which he h is been summoned. The summons was for settlement of issues as well. The defendant was required to bring with him documents which he wanted to rely in support of his reply. Even if it is taken that when summons had been served on the defendant by registered post on 25th March, 1985 and he was required to appear on 16th April, 1985, there was available to him a period of about 22 days to appear before the Court of District Judge, Balotra, and it was a sufficient time for a person to come from Calcutta to Balotra, I am of the view that despite the notice of the date of hearing, the defendant had no time to answer the plaintiff's claim for the obvious reason that the copy of the plaint did not accompany to the summons, which had been sent to the defendant by registered post. The plaintiffs had only filed one set of copy of the plain and its English translation in the Court of District Judge, Balotra. That copy had been received by the recipient of summons sent to Balotra, i.e., Lunia Transport Company, who was not a defendant in the suit.;