KURARYA Vs. DATA RAM

JUDGEMENT

(1.) This is an application in revision against an order of Mr. Banwari Lai, Sub- Judge Second Class, Rohtak, dated 18 April 1945, dis. missing the plaintiff's suit for pre-emption under the provisions of Order 9, Rule 5, Civil P.C. This rule reads thus: Where, after a summons has been issued to the defendant or to one of several defendants, and returned unserved, the plaintiff fails, for a period of three months from the date of the return made to the Court by the Officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant....

(2.) In order to make this rule applicable to the circumstances of a particular case, it has to be established under the provisions of Order 5, Rule 1 and 2, that a summons was issued to that defendant and that summons was accompanied by a copy of the plaint. As regards the contents of a summons these have been laid down in Appendix B, form of the Code, and it has been held that it is not enough that the defendant is generally made aware of the institution of a suit against him; each defendant is entitled to a copy of the summons with a copy of the plaint annexed to it.

(3.) What happened in the present case was that the suit for pre-emption was instituted on 19 December 1944 by the plaintiff, who is an agnate of the vendor, in respect of a sale made by him on 8 April 1944 of 5 bighas 11 biswas of land for the sum of Rs. 4000 in favour of defendants 1 to 6. On 2 January, 1945 a summons was issued for appearance of the defendants on 3 February 1945. This summons was written on a printed form which has been prescribed for use in cases where an application is made for the setting aside of a decree passed ex parte. Certain parts of this printed form were scored out and on the top of it was written that this summons was for settling issues. The summons watt addressed to the six defendants jointly and not, to each one of them individually, and in the concluding portion it states as follows: By means of this summons you are informed under, the provisions, of Order 9, Rule 14, Civil P.C., 1908, that you; should appear on 3 February, 1945 for the hearing of the application. This is the operative part of the summons and it calls upon all the defendants to appear on 3 February 1945, the date fixed for the hearing of an application to set aside an ex parte decree.