JOHN Vs. MAMMUKUTTY

JUDGEMENT

(1.) WE heard elaborately counsel for the petitioner, Mr. P. N. Ramakrishnan Nair, and counsel for the 1st respondent, Mr Abdul Azeez and also perused the relevant records. It is common ground that initially OP. No. 17 of 1975 was filed in forma pauperis. Summons was sent to the 1st defendant therefor along with a copy of the plaint. The 1st defendant filed written-statement in February 1977 instead of filing objections to the pauper application. The application filed to file the suit in forma pauperis was allowed on 4-8-1977. The suit was numbered as OS. No. 170 of 1977. Once a pauper application is allowed, notice should be served on the defendant under order V R. 2 CPC. The copy of the plaint should accompany the summons. It was not so done. No fresh plaint-copy was served along with the summons sent for the suit. The petitioner's counsel contends that this is a fundamental and patent infirmity. On that basis, the exparte decree passed on 17-11-1978 is a nullity. So, the application to set aside the exparte decree passed on 17-11-1978 need not be filed within 30 days of the decree. I. A. No. 2927 of 1979 filed under Order IX R. 13 CPC. to set aside the exparte decree within 30 days of the date of knowledge, 12-7-1979, was maintainable and proper. IA. No. 2927 of 1979 was filed on 17-7-1979. Before the disposal of the said petition, by way of abundant caution, the 1st defendant filed AS. No 88 of 1982, in this court on 8-12-1981 along with the above CMP. No. 5449 of 1982 to condone the delay in filing the appeal. The petition filed under Order IX R. 13 CPC. , i, e. IA. 2927 of 1979 was dismissed only on 7-9-1982. According to petitioner's counsel, the period during which the appellant (petitioner) was "bona fide" pursuing a statutory remedy, (the petition filed under Order IX R. 13 CPC) and delay caused on that score deserves to be condoned. There is no legal bar thereto.

(2.) IT is common ground that OP. No. 17 of 1975. the application filed praying to file the suit in forma pauperis, was allowed on 4-8-1977. The petitioner herein the appellant in the appeal (Ist defendant)filed the written-statement itself and not objections to OP. No. 17 of 1975 in february 1977. The question that falls for consideration is this: When an application filed in forma pauperis is allowed, should the summons in the suit to be sent, be accompanied by a copy of the plaint? The provisions of Order V r. 2 and Order XXXIII R. 8 are relevant in this regard, and they read as follows: "order V R. 2: Copy annexed to summons Every summons shall be accompanied by a copy of the plaint. " Order XXXIII R. 8: "procedure if application admitted. Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee or fees payable for service of process in respect of any petition, appointment of a pleader or other proceeding connected with the suit. " Construing the relevant provision of Order V R. 2 CPC janaki Amma, J. , in Purushothaman Nair v. Venugopalan (1980 KLT. 451) held, that once an application to sue in forma pauperis is allowed, summons should be issued to the defendant after the suit is formally registered. We agree. We are of opinion that if that be the legal position, the summons in the suit shall be accompanied by a copy of the plaint That is in accord with Order V R. 2 CPC. The said provision is mandatory. Summons sent without a copy of the plaint is invalid and will not satisfy the requirements of law. We hold that if the summons in the suit alone is sent without a copy of the plaint, there is no due "service of summons", as contemplated by Order V R. 2 CPC. We are fortified in taking the above view on the basis of the decisions reported in S. C. Sarkar versus Gosaidas Pal (AIR 1976 Calcutta 87), Purushothaman Nair v. Venugopalan (1980 KLT. 451), Jagan Nath v. Tek Chand (1974) 76 Punjab Law reporter 339 (343), M/s. Parma Nand Bhalothia & Sons v. M/s. Adarash Oil mills (1976) 78 Punjab Law Reporter 485 (489) and Vedantha Gounder v. Dhanapal (1976) 89 Law Weekly 185 (Mad. ). We hold that there is no due service of summons in the suit. Consequently, the court had no jurisdiction to proceed to decide the suit exparte. (See Jagan Nath's case (1974) 76 Punjab Law Reporter 339 (343)) On this basis the petitioner (1st defendant) was entitled to file T a 2927 of 1979 to set aside the exparte decree dated 17-11-1978 within 30 days of his knowledge of the decree on 12-7-1979. Since there was no due service of summons, as a sequel thereto, we have necessarily to hold that the Subordinate judge was incompetent to pass the exparte decree dated 17-11-1978 The said decree was not passed in accordance with law.