JAGAN NATH, ETC. Vs. TEK CHAND, ETC.

JUDGEMENT

(1.) TEK Chand Respondent filed a suit for the recovery of Rs. 7,590 against Shri Jagan Nath, Proprietor, Raj Kumar and Company (Defendant No. 1) and M/s. Raj Kumar and Company, Commission Agents, through Shri Jagan Nath, Ropar (Defendant No. 2), on October 17, 1970. The learned Sub -Judge on October 20, 1970, passed the following order:

(2.) IN revision, this Court can interfere only if the case falls within one of the clauses of Section 115 of the Code of Civil Procedure. This section reads as under:

(3.) IT is really unfortunate that neither the learned trial Court nor the learned District Judge opened the registered envelope which had been sent to the Petitioner for December 4, 1970, and which had been returned by the postman with the remark 'refused'. I have opened that envelope in the presence of the counsel for the parties and found that only summons was sent to the Petitioner in that envelope without a copy of the plaint. Even if it is presumed that the Petitioner has been served with the summons because of his refusal to accept the registered envelope, all that can be deemed is that he, was served with the summons of the suit under Order V, Rule 1, Code of Civil Procedure but without a copy of the plaint, which was necessary to be sent to him along with the summons under Rule 2 of Order V, in order to constitute 'due service'. Mere service of the summons is not synonymous with 'due service' as used in Order IX, Rule 13 of the Code of Civil Procedure. Merely because the Defendant had been served with a summons of the suit without a copy of the plaint, the learned trial Court had no jurisdiction to proceed to decide it ex -parte. That could be done only if the Defendant had been "duly served", that is, he had been served with the summons along with a copy of the plaint. Refusal to take delivery of the notice sent by registered post can he deemed to be prima facie proof of service of the document sent in that registered envelope, but not of any other document which was required under the law to accompany that document but did not. No such finding was recorded by the learned trial Court before ordering ex parte proceedings. In the present case, it cannot be presumed or deemed that he was served with the copy of the plaint also along with the summons. In his order dated May 3, 1972, dismissing the application of the Petitioner under Order 9, Rule 13, Code of Civil Procedure the learned trial Court merely held that "the Defendant has utterly failed to show that he was not served and that there is sufficient cause for setting aside the ex parte decree." No finding has been recorded that the summons had been duly served on the Petitioner. The learned District Judge has also not recorded any such finding in his appellate order. Evidently, the attention of the Courts below was not drawn to the fact that 'mere service' is different from 'due service', as contemplated by Order IX, Rule 13, Code of Civil Procedure. The requirement of Rule 2 of Order V of the Code that a copy of the plaint shall accompany the summons is meant to inform the Defendant as to the nature of the suit filed against him so as to enable him to decide whether to defend the same or not. It is for this reason that 'mere service' of the summons is not considered to be 'due service' to empower a Court to take ex parte proceedings against the Defendant.