HARI NARAIN Vs. LALLU NARAIN

JUDGEMENT

(1.) THESE two revision petitions of the defendants have been heard together at the instance of the learned counsel for- the parties, and will be disposed of by this judgment. A common question of law arises in both the petitions, and as it is the sole point of controversy between the parties, they may be said to be companion petitions in that sense. I shall, however, make a brief reference to the relevant tacts of both the cases separately so that the common question of law may be examined in its proper perspective.

(2.) IN S. B. Civil Revision petition No. 128 of 1973, the non-petitioners Lallu Narain and Mohan Lal instituted a suit against petitioner Hari Narain on November 7, 1970, for his eviction from the suit house, alleging that he had committed default in the payment of the rent for a period exceeding six months and had created a nuisance in the suit premises. The trial court, ordered the issue of summons to the defendant (petitioner) to appear and answer the claim on 22-2-1971. The defendant appeared in the court on that date, and his learned counsel brought to the notice of the court that he had not been supplied with a copy of the plaint and that a copy may be delivered to him. The plaintiff or his learned Counsel did not raise any objection, and the court made an order directing the plaintiff's counsel to supply a copy of the plaint to the defendant. March 10, 1971 was fixed for the filing of the written statement. It is not disputed that a copy of the plaint was given to the counsel for the defendant on March 4, 1971. When the case came up for hearing in the trial court on March 10, 1971, the defendant made an application under sec. 13 (5) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, hereinafter referred to as "the Act", and he also filed a written statement denying the plaintiffs' claim in the suit. IN his application under sec. 13 (5) of the act, the defendant raised a dispute regarding the rate of the rent, the claim as to the arrears and the amount of the arrears, and prayed that the court may determine the amount payable by him and grant time for the payment. The plaintiffs opposed the application by a written reply in which they stated that a copy of the plaint had been sent to the defendant with the summons and had been delivered to him, end the defendant know about the suit and should have inspected the file. It was therefore urged that the defendant was not entitled to the benefit of sec. 13 (5) of the Act. The trial court examined the controversy and passed an order on March 29, 1972 Determining that the rate of the rent was Rs. 25/-per mensem and directing that it was payable from December 1, 1969, along with interest 6% per annum A period of 15 days was allowed to the defendant to deposit the arrears, and the deposit was admittedly made within that time limit on April 11, 1972. The plaintiffs felt aggrieved and preferred an appeal. It was heard by Additional District Judge No. 3, Jaipur City, who allowed the appeal by his impugned judgment dated January 31, 1973 set aside the order of the trial court dated March 29, 1972, and dismissed he application of the defendant under sec. 13 (5) of the Act. This is why defendant Hari Narain has applied for a revision of the appellate court's judgment.

(3.) THE view I have taken finds supports from the decision in M. G Bux vs. Balli Mal Nawal Kishore (l) where it has been held that the summons cannot be regarded as "duly served" unless it is accompanied by a copy of the plaint. A similar view has been taken in Jagat Ram Hamir Chand vs. Shanti Sarup (2) and Jagannath vs. Tek Chand (3) although the expression "due service" came up for consideration in those cases in somewhat different circumstances. THE decisions are not, however, beside the point for, as has been stated, R. 6 (2) of O. IX, C. P. C. also provides for due service of summons on pain of payment of costs by the plaintiff. Reference may also be made to Shevaram Thadharam Jaisinghani vs. Indian Oil Corporation Ltd. (4) where it has been held that the summons had not been properly served as it was not accompanied by a copy of the plaint as required by O. V R 2 C P. C.