KRISHAN LAL Vs. MOHINDER NATH

JUDGEMENT

(1.) AGGRIEVED by the order of the appellate court setting aside the ex -parte decree against the respondent defendant, this revision petition has been filed on the ground of the impugned order being contrary to the provisions of law and the facts of the case. It is submitted that the appellate court completely ignored the provisions of O. 9. R. 13 CPC and set aside the order of the trial court on the flimsy grounds. Some of the facts giving rise to the filing of the present revision petition are that the petitioner -plaintiff filed a suit for declaration to the effect that he was the owner of a house bearing No. 281 situate at Narwal Colony, Jammu along with consequential relief of injunction restraining the defendant from challenging his title over the said house. It is submitted that the defendant refused to accept the summons issued by the court with the result that ex -parte proceedings were initiated against him on 6.1.1984 where after the petitioner led ex -parte evidence and the trial court finally passed an ex -parte decree in his favour on 11.2.1984. An application under O. 9 R. 13 of the CPC for setting aside the ex -parte judgment and decree was filed in the trial court on 20.4.1984 mainly on the ground that no summon was ever shown to or served upon the defendant and that the report of the process server was incorrect. No witness including the process server was ever produced by the plaintiff to show the alleged refusal of the summons by the defendant. The summons were alleged to be not accompanied by the copy of the plaint and after coming to know about the passing of the decree in ex -parte 17.4.1984, the defendant filed a petition in the trial court for setting aside the ex -parte judgment and decree on 17.4.1984. In the objections filed by the plaintiff, the allegations of fact made by the defendant were denied and it was submitted that the petition deserve dismissal as being barred by time. The defendant produced Shri Chuni Lal and Bansi Lal as his witnesses whereas the plaintiff produced Krishen Lal, Desh Raj and Matu Khan process server as his witnesses. After appreciating the facts and circumstances of the case the trial court dismissed the application by holding that the defendant had been duly served and had knowledge of the ex -parte decree. It was further held that the application filed by him was barred by time. In appeal the order of the trial court was reversed and the judgment and decree set aside against which the present revision petition has been filed. I have heard the learned counsel for the parties and have perused the record.

(2.) MATU Khan the process server of the court in his statement recorded on 12.3.1986 has admitted that the summon handed over to him for service upon the defendant was not accompanied by the copy of the plaint. It is also admitted that no notice was sent to the defendant through registered post.

(3.) O . 5 R. 2 of the C. P. C provides that every summons issued to the defendant shall be accompanied by a copy of the plaint, or if so permitted by a concise statement. Service of the summons has to be made by delivery or tendering a copy thereof signed by the Judge or such officer as he appoints in that behalf, and sealed with the seal of the court. The summons have to be served upon the defendant in person unless he has an agent empowered to accept the service. In case of refusal to accept the service or where the serving officer, after using all due and reasonable diligence cannot find the defendant, who is absent from his residence at the time when service is sought to be affected on him at his residence and there is no likelihood of his being found at the residence within the reasonable time the serving officer is obliged to affix a copy of the summons on outer door or other conspicious part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and return the original to the court from which it was issued with the report endorsed thereon or annexed there to stating that he has so affixed the copy and the circumstances under which he did so. He is further under an obligation to give the name and address of a person or persons by whom the house was identified and in whose presence the copy was affixed. Where a summon is returned under O. 5 R. 17, the court shall, where the return under the rule has not been verified by an affidavit of the serving officer and may, if it has been so verified, examine the serving officer on oath or cause him to be so examined by an order touching his proceedings or and may make such enquiry as is deemed proper. Under Rule 19 (A) of O. 5 of the C. P. C. the court is under a legal obligation, in addition to, and simultaneously with, the issue of summons for service in the manner provided in rule 9 to 19 both inclusive, also direct the summons to be served by registered post, acknowledgement due addressed to the defendant or his agent empowered to accept the service, at the place where the defendant actually and voluntarily resides or carries on business or personally works for gain. The court, however, has the discretion to dispense with the service of summons by registered post where it is considered unnecessary, absence of proof of service under the provisions of O. 5 CPC it has to be presumed that the defendant was never served and the court would not be justified in initiating ex -parte proceedings under O. 9. R. 6 CPC. It was held in M. G. Dua vs. Balli Mal, reported in AIR 1959 Punjab 467: "Section 27 of the Civil Procedure Code lays down that where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and it may be served in the manner prescribed. Order 5 of the First Schedule prescribes the manner in which service is to be effected. Rule 2 of the Order 5 says "Every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement." Evidently, no copy of the plaint was sent to the defendant along with the summons. It is not stated by the plaintiff and the fact was mentioned in the letters written by his solicitors to the court and to the plaintiff. Exparte proceedings under Order 9 Rule 6, Civil Procedure Code, can only be taken where the defendant does not appear when the suit is called for hearing, if it is proved that the summons was duly served. A summons cannot be regarded as duly served, unless it is accompanied by a copy of the plaint. Without a copy of the plaint, the defendant had no means of knowing as to what was the nature of the suit and deciding whether it was at all necessary for him to defend it."