Research › Browse › Judgment

Madhya Pradesh High Court · body

1979 DIGILAW 146 (MP)

Bhagirath v. Bhanwerpal

1979-03-31

H.G.MISHRA

body1979
ORDER Mishra, J.- l. This is a revision under section 25 of the Provincial Small Cause Courts Act, 1887 against an order dated 5-2-1975. whereby an application of the defendant applicant for setting aside the ex parte decree has been dismissed. 2. Facts essential for the decision of this revision are as under :- The plaintiff non applicant had filed a suit for recovery of money amounting to Rs. 871.30. This suit was decreed ex-parte on 23-2-1974. On 21-3-1974, the defendant applicant submitted an application for setting aside the ex- parte decree, after complying with the requirement of provision of the proviso to section 17 (1) of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as 'the Act'). The ground on which this application was submitted was that the copy of the plaint was not served on the defendant applicant. Therefore there was no due service of the summons on him. The plaintiff non-applicant did not dispute the factum of non-supply of the copy of plaint to the defendant-applicant but contended that inspite of the failure to supply the copy the fact does not invalidate the service. The contention of the plaintiffs non-applicant found favour with the learned Small Cause Judge as a consequence where of the application submitted by the defendant applicant for setting aside the ex-parte decree has been dismissed. Hence this revision. 3. In this revision Shri Apte, learned counsel of the defendant-applicant contended that the provisions of Order 5, rule 2 of the Code of Civil Procedure read with section 17 of the Act apply to the situation. Accordingly, non-compliance thereof is an illegality and not an irregularity within the meaning of M. P. Amendment dated 16-9•1969 in Order 9, rule 13 of the Code of Civil Procedure. 4. Shri K. N. Gupta, learned counsel for the plaintiff-non-applicant argued in support of the impugned order and contended that: (1) the summons admittedly served on the defendant-should be treated as a concise statement of the plaint within the meaning of rule 2 of Order 5. As such, even if this provision may be considered to be mandatory, it is said to be complied with substantially, and (2) the-non-supply of the copy of the plaint is an 'irregularity' within the meaning of M. P. Amendment referred to above. As such, there is no ground for interference with the impugned order. 5. As such, even if this provision may be considered to be mandatory, it is said to be complied with substantially, and (2) the-non-supply of the copy of the plaint is an 'irregularity' within the meaning of M. P. Amendment referred to above. As such, there is no ground for interference with the impugned order. 5. Having heard the learned counsel for the parties, I have reached the conclusion that the revision deserves to be allowed. The Provincial Small Cause Courts Act, 1887, by section 17(1) enacts that (1) the procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Cause in all suits cognizable by it and in all proceedings arising out of such suits: Provided that an applicant for an order to set-aside a decree exparte or for a review of judgment shall, at the time of presenting his application, either in the Court the amount due from him under the decree or in pursuance of the judgment or give such security for the performance of the decree or compliance with the judgment as the Court may on a previous application made by him in this behalf, have directed. (2) Where a person has become liable as surety under the proviso to sub-section (1) the security may be realised in manner provided by section 146 of the Code of Civil Procedure, 1908." In this case, the proviso of the aforesaid section stands complied with. 6. It is admitted between the parties that along with the summons which was served on the defendant-applicant copy of the plaint was not served. Therefore, the question which this revision poses is what is the effect of not serving a copy of the plaint with the summons on defendant-applicant and whether it is an illegality or mere irregularity with n the meaning of M. P. Amendment mentioned above. 7. As mentioned above, the procedure enacted by Order 5, rule 2 of the Code of Civil Procedure arc applicable to Small Cause suits also Neither the provincial Small Cause Courts Act nor the Code of Civil Procedure makes the Procedure enacted by Order 5 rule 2 inapplicable to small cause suits. Accordingly, it was necessary that the summons should have been accompanied by a copy of the plaint. Accordingly, it was necessary that the summons should have been accompanied by a copy of the plaint. Order 5, rule 2 of the Code reads as under:- "Every summons shall be accompanied by a copy of the plaint or if so permitted, by a concise statement." (emphasis supplied by me). The use of the word 'shall' indicates that the provision is mandatory. In M. G. Dua v. Balli Mal AIR 1969 Punjab, 467, it has been held that a summons could not be regarded as duly served unless it is accompanied by a copy of the plaint. Similar is the view of Bombay High Court in Shivram v. Indian Oil Corporation Ltd. AIR 1969 Bombay 117. There are certain local amendments in Punjab as well as Bombay but the law on the point at hand is substantially the same. As such, it was necessary to show that either a copy of t he plaint was served on the defendant or, if so permitted, the summons was ac-complained by a concise statement of the plaint. In the instant case apart from the summons, no concise statement of the plaint is shown to have been either permitted or served on the defendant-applicant Rule 2 of Order 5, no doubt, permits two alternative procedures: (a) accompaniment of summons to a copy of the plaint, or (b) accompaniment of summons by a concise statement, if so permitted. In the instant case except the service of the summons, none of the aforesaid procedures has been followed neither the copy of the plaint has been served on the defendant-applicant nor a concise statement of plaint. As such, the service effected on defendant-applicant violates the procedure prescribed by rule 2 of Order 5. 8. This brings to me the effect of M. P. Amendment dated 16-9-1960 in rule 13 of Order 9 of the Code with M. P. Amendment reads as under :- "Order 9, rule 13. -In any case in which a decree is passed exparte against a defendant, he may apply to the Court by which the decree was passed for a n order to set. -In any case in which a decree is passed exparte against a defendant, he may apply to the Court by which the decree was passed for a n order to set. It aside, and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing the Court shall make an order setting aside the decree as against him upon such terms as to cost payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it can not be set aside as against such defendant only it may be set aside as against all or any of the at her defendants also. Madhya Pradesh Amendment: "(a) (b) (c) Add the following proviso as an additional proviso and explanation to sub-rule (1) : Provided also that no such decree shall be set• aside merely on the ground of irregularity in service of summons, if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim." (emphasis is mine.) The proviso added by the aforesaid M. P. Amendment concerns itself with curing an 'irregularity' in service of summons and not an "illegality". The violation of a mandatory provision of law (here Order 5, rule 2) amounts to an illegality and not an irregularity in the service of summons. The learned Judge of the Small Cause Court erred in treating it to be a mere irregularity. The purpose of service of a copy of the plaint, or if so permitted a concise statement thereof, is to bring home to the defendant knowledge of a particular suit having been instituted against him so that he may know what is the claim brought by the plaintiff's against him and make up his mind to defend himself in the case or not. This appears to be the reason why the law makers have made rule 2 of Order 5 mandatory by using the word 'shall'. Accordingly the omission of accompaniment of the copy of the plaint or a concise statement thereof, if so permitted, cannot be treated to be a mere irregularity. 9. This appears to be the reason why the law makers have made rule 2 of Order 5 mandatory by using the word 'shall'. Accordingly the omission of accompaniment of the copy of the plaint or a concise statement thereof, if so permitted, cannot be treated to be a mere irregularity. 9. In this view of the matter, the revision deserves to be allowed and is hereby allowed. The application submitted by the defendant applicant for setting aside the decree stands allowed and the exparte decree is set aside. The parties are directed to appear before the learned Judge of the Small Cause on 23-4-1979 on which date the plaintiff will supply a copy of the plaint to him and thereafter, the case will be tried in accordance with law. In view of the facts and circumstances of the case, I make no order as to costs.