PREM CHAND Vs. MADAN LAL

JUDGEMENT

(1.) THIS revision petition under Section 115, CPC is directed against the order dated 23. 3. 93 passed by Shri Prashant Kumar Agarwal, Additional District Judge No. 3, Kota in Civil Misc. Appeal No. 137/90 whereby the appeal filed by the defendant-petitioner has been dismissed and the judgment of AMJM No. l, Kota North, Kota dated 4. 12. 90 in Civil Suit No. 413/90 dismissing the application dated 22. 10. 81 of the defendant-petitioner for setting aside the ex-parte decree, has been upheld.

(2.) THIS is second round of litigation between the parties before this Court. Earlier a revision petition No. 87/92 Madan Lal vs. Prem Chand was decided by this Court on 27. 4. 87 against the order dated 7. 11. 81. The ex-parte decree was sought to be set-aside by moving an application for setting aside the ex-parte decree under Ordear 9 Rule 13 CPC. The learned trial court vide order dated 7. 11. 81 set-aside the ex-parte decree. Against this order dated 7. 11. 81 the plaintiff preferred a revision petition before the High Court being S. B. Civil Revision No. 87/82. THIS revision petition No. 87/82 was decided on 27. 4. 87 and the High Court while deciding the revision petition observed that from the finding recorded by the trial court it was clear that the summons having been served on the defendant for hearing of the suit on 18. 2. 81, the defendant had notice of the date of the suit no doubt in the absence of the copy of the plaint the defendant had to obtain further information about the suit, even though he knew that such a suit had been filed against him of which the particulars were given in the summons. In such a situation, it was incumbent on the trial court to further examine whether on these facts the defendant having notice of the date of hearing of the suit also had sufficient time to appear and answer the plaintiffs claim?

(3.) MY attention has been invited to Harinarayan Vs. Lallu Narayan (1 ). This is the decision of the Rajasthan High Court in which it has been held as under: - "if, the summons is not accompanied by a copy of the plaint, the defendant will not be able to answer the plaintiffs claim on the day specified in the summons for the purpose. Every summons should necessarily be accompanied by a copy of the plaint, and if it is found that the summons was not "duly served", the court has to postpone the case and order the plaintiff to pay the costs thereof. It follows that February 22, 1971 and July 27, 1972 which were the days fixed in the summonses under Order V, RR. 1 and 6 CPC for the appearance of the defendants, could not be taken to be first date of hearing in the facts and circumstances of these cases inasmuch as the summonses had not been "duly served" in accordance with the requirement of the law".