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1982 DIGILAW 32 (KAR)

SREE ADINARAYANA TRADING CO. v. STATE OF PUNJAB

1982-02-01

K.A.SWAMI

body1982
K. A. SWAMI, J. ( 1 ) AT the stage of admission, the respondents are notified. Accordingly, the 2nd respondent has put in appearance through a counsel; therefore, the matter is taken up for final hearing. ( 2 ) THIS CRP. is preferred against the order dt. 18-4-1981 passed by the learned V Addl. City Civil Judge, Ban- galore, in Misc. No. 641 of 1930 setting aside the ex-parte decree passed in O. S. No. 285 of 1978 on the file of the then civil Judge, Bangalore City, and thereby restoring the suit to Us original number. ( 3 ) IT was found by the trial Court that the respondents were not duly served with the summons in O. S. 285 of 1978; therefore, the ex-parte decree was invalid. Accordingly, it had set aside the ex-parte decree. ( 4 ) IN this civil revision petition, it was contended by Sri R. N. Narasimha murthy, learned Counsel for the petitioner, that each of the defendants was served with the summons and each one of them had sufficient time to appear before the Court. It was further contended that merely because the summons was not accompanied by a copy of the plaint, it did not mean that the summons was not duly served. It was further contended that having regard to the second proviso to Rule 13 of Order IX cpc. (shortly 'the Code'), added by S. 59 (v) and (vi) of Act No. 104 of 1976, it was not at all open for the Court below to set aside the ex-parte decree merely on the ground that there was an irregularity in the service of summons; as long as the respondents had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. "on the contrary, it was submitted by Sri M. S. Gopal, learned counsel for the 2nd respondent, that under Order V, Rule 2 of the Code, it was necessary to send a copy of the plaint along with the summons; that failure to comply with it, or, in other words, service of summons in breach of rule 2 of Order V of the Code, did not, in law, amount to due service of summons. Thus, it was submitted that failure to send a copy of the plaint along with the summons was not a mere irregularity in theservice of summons, but in law it did not amount to service of summons or at any rate it did not amount to due service of summons, therefore, in such a case, the proviso added by Act no. 104 of 1976 to Rule 13 of Order IX of the Code, was not attracted. " ( 5 ) HAVING regard to the rival contentions, the question that arises for my consideration are as follows : (1) Whether there was a due service of summons on the respondents who were the defendants in O. S. No. 285 of 1978 ? (2a) Whether failure to send a copy of the plaint along with the summons amounted to a mere irregularity ? (2b) If so, having regard to the second proviso to Rule 13 of Order IX of the Code, whether it was a fit case for setting aside the ex-parte decree ?3) Whether it is a case in which interference under S. 115 of the Code, is called for ? ( 6 ) THE following facts can be taken to have been established in the case. The petitioner has filed the suit in question bearing O. S. No. 285 of 1978 for recovery of money against the respondents. The suit was posted on 26-10-1978. The respondents-defendants were served with the summons prior to 10-10-1978 to appear before the court OR 26-10 -1978 to answer the claim. A copy of the plaint was not sent along with the summons. On 10-10-1978, the respondents sent a telegram to the court stating that a copy of the plaint had not been sent along with the summons and to send a copy of the same. This telegram was received on 12th october, 1978. On 26-10-1978, the suit came to be adjourned to 30-11-1978. On 10-11-1978, another telegram to the same effect had been sent by the respondents-defendants to the Court. On 30th november, 1978, an ex-parte decree was passed. Thereafter, on 2-2-1980, a registered notice was sent' by the petitioner plaintiff to the respondents-defendants to honour the decree. This notice was received by the respondents on 7-2-1980. On 1-3-1980, an application being Misc. On 10-11-1978, another telegram to the same effect had been sent by the respondents-defendants to the Court. On 30th november, 1978, an ex-parte decree was passed. Thereafter, on 2-2-1980, a registered notice was sent' by the petitioner plaintiff to the respondents-defendants to honour the decree. This notice was received by the respondents on 7-2-1980. On 1-3-1980, an application being Misc. Case No. 641 of 1980, out of Which this civil revision petition arises, came to be filed by the respondents-defendants for setting aside the expart decree. "the trial Court has also found that the respondents came to know of the ex-parte decree on 7-2-1980 when they were served with the registered notice sent by the plaintiff to honour tke decree. Of course, the trial Court has not considered the effect of the second proviso to Rule 13 of Order IX of the Code" ( 7 ) NOW the question for consideration is, whether the summons can be held to have been duly served, even if it has not been accompanied by a copy of the plaint. The object of Rule 2 of order V of the Code, in providing that every summons shall be accompanied by a copy of the plaint or if so permitted by a concise statement, is to enable the defendants to know the claim made against him/them and to enable him/ them to answer the claim made by the plaintiff. "it is because of this, Rule 2 of Order V of the Code specifically provides that summons shall be accompanied by a copy of the plaint. Of course, the rules of procedure are not normally to be interpreted in such a way so as to defeat substantial rights of the parties or to come in the way of doing substantial justice to the parties. Therefore, it is required to be seen whether it is mandatory that a copy of the plaint most accompany the summons, When the rule provides that a copy of the plaint mu,t accompany the summons and the object of the rule is to enable the other side to make him know the claim made against him If the plaint copy does not accompany the summons it is not possible for the other side to know the claim of plaintiff, with the result the very object of serving summons will not be served. Therefore, it is necessary to comply with the provisions of Rule 2 of Order V of the Code. Failure to comply with it would deprive the defendant to know the claim of the plaintiff; consequently, he will not be able to get ready within the time allowed in the sumnsons to answer the claim of the plaintiff. The object of the rule, and the interests of justice, and so also the interest of the defendant are better served by interpreting Rule 2 of Order V of the Code as mandatory. Thus, having regard to the object which is sought to be achieved by Rule 2 of Order V of the code, it is mandatory to send a copy of of the plaint, or if so permitted by the court, a concise statement of the claim of the plaintiff, along with the summons. Consequently, it follows that if a copy of the plaint, or if so permitted by. the court, a concise statement of tbe claim of the plaintiff, does not accompany the summons, it does not amount to due service of summons, as it results in breach of a mandatory provision. Consequently, it will not be a mere irregularily but it will be an illegality affecting the proceedings of the suit. Therefore, the second proviso to Rule 13 of order IX of the Code is not attracted in a case where there is an illegality com mitted in the service of summons. Failure to send a copy of the plaint, or if so permitted by the Court, a concise statement of the claim of the plaintiff along with the summons, is one such illegality. It is not a mere irregularity as it results in breach of a mandatory provision i. e. , Rule 2 of Order V of the code. Of course, an irregularity in the service of summons may occur in more ways than one, and the 2nd proviso. to rule 13 of Order IX of the Code, is attracted only when there is an irregularity in the service of summons and not otherwise. Thus, questions I and 2 (a) are answered accordingly. This is also the view taken by the High Court of Punjab in M. G. Dua. Balli Mal nawal Kishore (1 ). This Court, in CRP no. Thus, questions I and 2 (a) are answered accordingly. This is also the view taken by the High Court of Punjab in M. G. Dua. Balli Mal nawal Kishore (1 ). This Court, in CRP no. 1399 of 1974 (2) disposed of on 12-9-1974, has not considered the effect of the proviso similar to the second proviso in question which was in force in the State of Karnataka, as amended bf this Court under R. O. G. 2526/1959. It was a case of substituted service. Even in the case of substituted service it was held that a copy of the plaint must accompany. The other case reported in Universal Machinery v. Vinag mining Co (3), is not on the point inasmuch as that is a cast of service of summons addressed to a wrong person. Therefore, it is not accessary to refer the said case in detail. "as the second proviso to Rule 13 of Order 9 of the Code had no application to the case, as the summons had not been duly served on the defendants, it was a fit case for setting aside the exparte decree. Therefore, the Court below was justified in metting aside the ex-parte decree passed in the suit. Question No. 2 (b) is answered accordingly. " ( 8 ) IT is also contended by Sri R. N. Narasimha Murthy, learned Counsel for the petitioner, that this is not a ca e for interference under S. 115 of the code, having regard to the proviso to clause (c) of sub-sec. (1) of S. 115 of the Code. It is submitted that the said proviso has been introduced with an object to place additional restriction on the exercise of power under S. 115 of the Code against interlocutory orders. No doubt the proviso further restricts the exercise of power by the High Court under S, 115 of the Code against interlocutory orders. In the report submitted by the Law Commission for introducing the aforesaid proviso, it has also been stated that it is necessary to restrict the power of revision in cases of interlocutory orders. The present case does not fall under the category of interlocutory orders, because miscellaneous proceeding is an independent proceeding and it comes to an end as and when it is either allowed or dismissed. The order challenged in this revision petition is the final order pasted in the Miscellaneous proceeding. The present case does not fall under the category of interlocutory orders, because miscellaneous proceeding is an independent proceeding and it comes to an end as and when it is either allowed or dismissed. The order challenged in this revision petition is the final order pasted in the Miscellaneous proceeding. Of course, the principle underlying the said proviso have always to be applied by the High Court while exercising revisional jurisdiction in order to find out whether it is a case for interference u nder S. 115 of the Code, That being so, in the present case, if the order under revision is set aside, it will result not only in failure of justice, but it will also cause irreparable injury to the respondents. Further, if the order of. the Court below, allowing the miscellaneous case and thereby setting aside the ex-parte decree, is allowed to stand, no injustice would be caused to the petitioner because it has to establish its case. Therefore, looked at, from this point of view also, it is not a case for interference. For the reasons stated above, this revision petition fails and the same is dismissed. --- *** --- .