DEV KARAN Vs. BHAGWAN DASS

JUDGEMENT

(1.) THIS revision petition is directed against the order of the Additional District Judge, Ferozepur, dated January 28, 1988. whereby the order of the trial Court dated May 12, 1936, dismissing the application for setting aside the ex pane decree was maintained.

(2.) THE plaintiff filed the suit for the specific performance of the agreement of sale. Summons were issued to the defendant for September 1, 1983, for which he was served personally on August 12, 1983. In spite of the service, the defendant failed to appear. Ultimately, the ex-parte decree was passed an February 6, 1984. The defendant filed the application dated January 18, 1985, for setting aside the ex-parte decree alleging that he was never served in the suit nor he had ever refused to accept the summons, but the plaintiff getting a fictitious report of the summons got the ex-parte decree against him. On January 16, 1985, when he came to know about the decree from one Sher Amir, Clerk of the Municipal Committee, Abohar, he immediately after enquiry moved the necessary application for setting aside the ex-parte decree. The said application was contested on the plea that the defendant was duly served. The allegations made in the application were denied. It was also pleaded that the application was barred by limitation. The trial Court after framing the issues and allowing the parties to lead evidence came to the conclusion that there was no sufficient ground for setting aside the ex parte decree date 1 February 6, 1984. According to it the service had been effected on the defendant personally. Even if a copy of the plaint was not given to him at that time, it was an irregularity. It was further found that since the defendant was served personally and the ex parte decree was passed on February 6, 1984, the application for setting aside the same hold on January 18, 1985, was beyond limitation. Consequently, the application was dismissed. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and thus maintained the order dismissing the application.

(3.) THE learned counsel for the petitioner submitted that it has been wrongly held that the defendant was personally served. In any case, argued the learned counsel, when the copy of the plaint was not given along with the summons, it was to service in the eye of law and, therefore, he could not be proceeded with ex-parte. It was further submitted that under Order V. Rule 2, Code of Civil Procedure, every summons shall be accompanied by a copy of the plaint. He also referred to Rule 19a thereof to the effect that the simultaneous issue of summons for service by post in addition to personal service was also obligatory, which was not done. Thus, argued the learned counsel, the view taken by the Courts below was wrong and illegal. In support of the contention, the learned counsel referred to Jagat Ram v. Shanti Sarup, (196) 67 P. L. R. 45. Nasib Singh v. Jagdish Chand, (1980) 82 P. L. R. 729. and Karnail Singh v. Dina Nath. , (1985-2) 88 P. L. R. 477. On the other band, the learned counsel for the respondent submitted that since it has been concurrently found by both the Courts below that the defendant was personally served, the same being a finding of fact could not be interfered with in the revisional jurisdiction. It was further argued that in case the copy of the plaint was not given, it was an merely an irregularity and in view of the proviso to Order IX Rule 13, of the above-said Code, to the effect that no Court shall set-aside a decree passed ex-parte merely on the ground that there had been an irregularity in the service of summons, if it is satisfied that defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. In support of this contention reliance was placed by the learned counsel on Risaldar Pakhar Singh v. Bhajan Singh, (1987-1) 91 P. L. R. 146.