JUDGMENT 1. - Respondents in this Miscellaneous Appeal has instituted Civil Suit No. 3/85 in the Court of the District Judge, Balotra, against the appellant on December 17, 1984, for the recovery of a sum of Rs. 17,978/-. There was an office report that the plaint, which had been filed by the respondents, was in English language and no Hindi translation of the plaint had been filed. It appears that Hindi translation of the plaint was filed by the respondents on January 14, 1985. The process-fee had already been filed on December 17, 1981. It further appears that summons of the suit along with copy of the plaint in English and its Hindi translation were issued to the appellant through its Balotra Branch. The summons along with copy of the plaint was received by someone on behalf of Lunia Transport Company, near bus Stand, Balotra and the process-server made an endorsement that the recipient of the summons noted that Lunia Transport Company had no connection with the appellant M/s. Jain Transport Organisation, Kalakar Street, Calcutta. This summons was for appearance on February 22, 1985. From the recital of above facts, it is clear that there was no service of summons on the defendant-appellant through the summons issued from the Court of the District Judge, Balotra on January 1985 and served on Lunia Transport Company on 29th January, 1935 along with copy of the plaint. There is nothing to show on the record that actually any summons along with copy of the plaint was sent to the defendant-appellant at Calcutta. It was on 22nd February, 1985, that the District Judge, Balotra, ordered that summons may be sent to the defendant at its Head Office at Calcutta on filing of the process-fee and simultaneously, one more summons may be sent to the defendant at its Calcutta address by registered post, and the next date fixed was 16th April, 1985. No summons were sent to the defendant-appellant in ordinary course at its Head Office of Calcutta. However, it appears that summons of the suit were sent to the defendant-appellant at its Calcutta Head Office address by registered post and an acknowledgement receipt bearing signatures of the recipient dated 25th March, 1985 was received by the District Judge, Bolotra in token of the service of summons sent by registered post to the defendant. However, it appears that summons of the suit were sent to the defendant-appellant at its Calcutta Head Office address by registered post and an acknowledgement receipt bearing signatures of the recipient dated 25th March, 1985 was received by the District Judge, Bolotra in token of the service of summons sent by registered post to the defendant. The District Judge treated this service as sufficient and as the defendant, despite service, was absent, he was proceeded ex parte. On May 24, 1985, statement of Sampat Singh Shekhawat (P.W. 1) was recorded on behalf of the plaintiff in ex parte evidence and on that very day, an ex parte decree was passed against the defendant-appellant by the District Judge, Balotra for Rs. 17,978/- with costs along with Judge, Balotra for Rs. 17,978/- with costs along with pendente lite and future interest at 6% per annum. 2. The defendant-appellant through its Administrative Officer at Jaipur, filed an application under O. IX, R. 13 CPC, on November 30, 1985 in the Court of the District Judge, Balotra, for setting aside the ex parte decree passed against the defendant on May 24, 1985. The grounds for setting aside the ex parte decree, as given by the defendant-appellant in his application under O.IX. R. 13, CPC, were that it had no Branch Office at Balotra and the plaintiff deliberately got summons issued to alleged Balotra Branch It was stated that the Administrative Office of the defendant was at Jaipur and it was within the knowledge of the plaintiffs. However, they did not get any summons issued and served at the Administrative Office of the defendant at Jaipur. It was admitted that the defendant's Head Office is at Calcutta. It was not disputed that summons were received at Calcutta by the defendant, but it was alleged that copy of the plaint was net served up an the defendant along with summons. It was further alleged that sufficient time was not allowed to the defendant to before the Court of the District Judge, Balotra in the summons and as such, the service could not be regarded as due service of summons. It was further alleged that sufficient time was not allowed to the defendant to before the Court of the District Judge, Balotra in the summons and as such, the service could not be regarded as due service of summons. The defendant pleaded in his application that he came to know of the ex parte decree on October 30, 1985, when the defendant had moved an application for setting aside the ex parte decree in the Civil Court at Balotra and the counsel for the plaintiffs gave him information about the ex parte decree in in this suit. The defendant on the above grounds prayed for setting aside of the ex parte decree passed by the District Judge on May 24, 1985. This application of the defendant was contested by the plaintiffs by fixing a reply on January 20, 1986. The plaintiffs stated that defendant's Branch Office was at Balotra and Head Office was at Calcutta and at both the places, summonses were duly served on the defendant. Despite service, the defendant did not appear on the dates on which he was required to appear before the Court and the Court proceeded ex parte against the defendant and passed the ex parte decree. In any event, it was pleaded by the plaintiffs that the application of the defendant for setting aside the ex parte decree dated May 24, 1985, was barred by limitation because while the decree had been passed on May 24, 1985, the application for setting aside the ex parte decree was made by the defendant before the District Judge, Balotra, on November 30, 1985. The application was clearly stated to be barred by limitation. 3. A narration of the above facts would go to show that there was no due service of summons on the defendant-appellant. O.V., R. 1 of the Code of Civil Procedure provides that when a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified. It further provides that where a summons has been issued, the Court may direct the defendant to file the written statement of his defence, if any, on that date of his appearance and cause an entry to be made to that effect in the summons. It further provides that where a summons has been issued, the Court may direct the defendant to file the written statement of his defence, if any, on that date of his appearance and cause an entry to be made to that effect in the summons. Rule 2 of O.V. provides that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. The object of providing that every summons should be accompanied by a copy of the plaint or, if so permitted, by a concise statement is to enable the defendant to appear and answer the claim of the plaintiff and if so required, file the written-statement. It is the plaint, which contains a statement in a concise form of the material facts on which the party pleading relies for his claim and it contains necessary particulars in cases where it is necessary to provide general or special particulars. Rules 9 to 19 of O.V. of the Code make provision for service of summons where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction, who is empowered to accept the service of the summons. Head Office of the defendant appellant is admittedly at Calcutta. Thus, the defendant did not reside within the jurisdiction of the Court of the District Judges, Balotra. According to the defendant, its Administrative Office was at Jaipur. Jaipur was also not within the jurisdiction of the Court of District Judge, Balotra and, consequently, the provisions contained in Orders 9 to 19-A of Orders 5 did not apply. It was either rule 21 or rule 22 of O.V. of the Code, which applies. Rule 21 of O.V. provides for service of summons where defendant resides within the jurisdiction of another Court and rule 22 deals with service within former presidency-towns of summons issued by Courts outside. Summons in the instant case has been issued by the Court of District Judge, Balotra. It is established beyond the limits of the towns of Calcutta, Madras and Bombay and it is provided in rule 22 of O.V, that in such cases, the summon are to be served within the above towns by sending the same to the Court of Small Causes within whose jurisdiction it is to be served. It is established beyond the limits of the towns of Calcutta, Madras and Bombay and it is provided in rule 22 of O.V, that in such cases, the summon are to be served within the above towns by sending the same to the Court of Small Causes within whose jurisdiction it is to be served. In the instant case, no summons was sent to the defendant for being served of him to the Court of Small Causes, Calcutta within whose jurisdiction it was to be served. No summons was sent to the Administrative Officer of the defendant at Jaipur in accordance with O.V. rule 21 by sending the summons by the District Judge either by one of its officers or by post to a Court having jurisdiction where even the defendant's agent resided. The duty of the Court to which summons are sent under rule 21 or rule 22 is specified in rule 23 and it has been made incumbent upon them that upon receipt of the summons, such Court shall proceed as the summons had been issued by such Court and shall then return the summons to the Court of issue, together with the record (if any) of the proceedings with regard thereto. It is no-where provided in the Code of Civil Procedure that where summons are issued by any Court established beyond the limits of the towns of Calcutta, Madras and Bombay that it can send the summons by registered post directly to the defendant. The only mode of service provided is that in such cast issuing Court has to send the summons to the Court of Small Causes of the towns concerned and direct service on the defendant by registered post of summons was not a service of summons on the defendant according to Rules. However, it may be mentioned here that second proviso to O. IX R. 13 of the Code provides that no Court shall set aside a decree passed ex parte merely on the ground the there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. The non sending of the summons to the defendant for service through the Court of Small Causes, Calcutta was nothing more than an irregularity in the service of summons and only on account of this irregularity, no Court can set aside an ex parte decree. But this proviso is subject to further conditions. The further conditions are that the Court should be satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. The form of the summons would go to show that the defendant was required to appear either in person or through counsel, who may be conversant with the facts of the case or who may be accompanied by a person who may be able to answer any matter to reply which he h is been summoned. The summons was for settlement of issues as well. The defendant was required to bring with him documents which he wanted to rely in support of his reply. Even if it is taken that when summons had been served on the defendant by registered post on 25th March, 1985 and he was required to appear on 16th April, 1985, there was available to him a period of about 22 days to appear before the Court of District Judge, Balotra, and it was a sufficient time for a person to come from Calcutta to Balotra, I am of the view that despite the notice of the date of hearing, the defendant had no time to answer the plaintiff's claim for the obvious reason that the copy of the plaint did not accompany to the summons, which had been sent to the defendant by registered post. The plaintiffs had only filed one set of copy of the plain and its English translation in the Court of District Judge, Balotra. That copy had been received by the recipient of summons sent to Balotra, i.e., Lunia Transport Company, who was not a defendant in the suit. 4. Learned counsel for the plaintiffs relied upon the decision of a former learned Chief Justice of this Court in Giyarsi Lal v. Firm Ram Gopal, ILR (1959) 9 Raj. 1012 . That copy had been received by the recipient of summons sent to Balotra, i.e., Lunia Transport Company, who was not a defendant in the suit. 4. Learned counsel for the plaintiffs relied upon the decision of a former learned Chief Justice of this Court in Giyarsi Lal v. Firm Ram Gopal, ILR (1959) 9 Raj. 1012 . Facts in that case were that in the suit, which had been filed by the plaintiff, there were five defendants and they were all impleaded on the footing that they were partners in a joint family business. Ex parte decree had been passed in a suit for recovery of money on 12th May, 1951. After the decree, three sets of applications for setting aside the ex parte decree were presented by some of the defendants. The first application was presented on 26th May, 1951, by two defendants Prabhulal and Ambalal who were petitioners in the Revision before the High Court. The second petition was filed on 31st May, 1951 by Gyarsilal, who was appellant in Miscellaneous Appeal before the High Court. The third application was filed after a long time on 3rd November, 1952 by defendant Kishanlal who was appellant in Miscellaneous Appeal No. 14/55 before the High Court. All these defendants who had filed three separate applications claimed that summons in the suit had not been served upon them. The Civil Judge set aside the ex parte decree in favour of Prabhulal and Ambalal, but he refused to set aside the decree against other defendants. No appeal or revision was filed against that order. But subsequently, as a result of the direction to proceed de novo against these defendants, the plaintiff filed an application for withdrawing the suit as against them and the court by its order allowed plaintiff to do so. Gyarsilal whose application for setting aside the ex parte decree was not allowed by the Civil Judge contended before the High Court that the summons was invalidly served on him and no copy of the plaint was enclosed to the summons. The record of the trial Court went to show that the summonses were served on Gyarsilal on 28th November, 1950, and when the court directed that the summons should be served on other defendants, it was Gyarsilal who accepted service of summonses on their behalf on 9th March, 1951. The record of the trial Court went to show that the summonses were served on Gyarsilal on 28th November, 1950, and when the court directed that the summons should be served on other defendants, it was Gyarsilal who accepted service of summonses on their behalf on 9th March, 1951. Despite his having received not only his own summons but the summons of the rest four defendants, Gyarsilal did not appear and ex parte decree was passed. The learned Chief Justiced noticed that in fact the point about the non-accompanying of the plaint was ever agitated in the trial court and nor complaint was made on that ground, as was clear from the order of the trial Court disposing of his application. Even in the O.IX, R. 13 application, it did not appear that he was serious to prosecute the same. Several dates were given to the defendant Gyarsilal to produce evidence by the trial Court and despite that, Gyarsilal did not adduce any evidence and continued to seek adjournment on one ground or the other and instead of producing evidence, he filed an application that since the ex parte decree had been set aside, as against other defendants, namely. Ambalal and Prabhulal on 17 December, 1951, the decree should be set aside as a whole. Such was the conduct of Gyarsilal. So the trial Court disbelieved his case of illness, which was not supported by any evidence when number of dates had been fixed and sufficient opportunity was given to him to set up his defence in the suit if he had any to offer. However, Gyarsilal did not care to appear on any of those dates and in that context, it was observed by his Lordship the Chief Justice that in the circumstances mentioned above, if a copy of the plaint had not been served on Gyarsilal, it was open before him to take the objection when he had appeared and could take the objection and the copy could have been easily provided to him. As a matter of fact, Gyarsilal wanted to take advantage of setting aside of the ex parte decree against Ambalal and Prabhulal by some how, avoiding his own absence on various dates, i.e., 4th September, 1951, 26th February, 1952, 14th March, 1952, 11th April, 1952 and 19th March 1952. This decision, therefore, does not help the plaintiffs-respondents. 5. As a matter of fact, Gyarsilal wanted to take advantage of setting aside of the ex parte decree against Ambalal and Prabhulal by some how, avoiding his own absence on various dates, i.e., 4th September, 1951, 26th February, 1952, 14th March, 1952, 11th April, 1952 and 19th March 1952. This decision, therefore, does not help the plaintiffs-respondents. 5. Reference may be made to a Single Judge decision of this Court in the case of Bheru Lal v. Shanti Lal, 1984 RLR 102 . In this case, summons were sent to the defendant by registered post, but the summons were not accompanied by copy of plaint. It was held that summons were incomplete and endorsement of refusal on such summons cannot be said to be a proper service. The defendant was well within his rights to have refused to accept such summons and he need not to have looked at such summons to find out its contents. I am of the view that the provision contained in OV, Rule 2 of the Code of Civil Procedure are mandatory because unless summons are accompanied by a copy of the plaint, it is impossible for a defendant to answer the claim of the plaintiff on the date on which he is required to appear and answer s the claim. I, with all respect, agree with the decision of his Lordship Mr. K.S. Lodha, J., that when summons sent by registered post or even otherwise are not accompanied by a copy of the plaint, there is no due service of summons. 6. When it has been found that summons in Civil Original Suit No. 3/85 were not duly served upon the defendant appellant, the next question, which needs determination is whether the application filed by the defendant-appellant under O. IX, R. 13 of the Code of Civil Procedure was within limitation. It is settled law that where summons are not served on a defendant and ex parte decree is passed against him, wrongly holding that summons were duly served upon him, the period of limitation for making the application for seeing aside ex parte decree starts from the date of knowledge of the decree. It is settled law that where summons are not served on a defendant and ex parte decree is passed against him, wrongly holding that summons were duly served upon him, the period of limitation for making the application for seeing aside ex parte decree starts from the date of knowledge of the decree. Reference in this connection may be made to the decision of their Lordships of the Supreme Court in the case of Panna Lal v. Murari Lal, AIR 1467 SC 1384 reported in which incidentally a question about interpretation of Article 164 of the Old Limitation Act of 1908 arose. Facts in Panna Lal's case were that the respondent Murari Lal had instituted two suits against Panna Lal in the Court of Civil Judge, Kanpur. Both were money suits and both of them were decreed on May 15, 1958 ex parte. Panna Lal filed an application to set aside the ex parte decree. In one of the suits No. 22/58, the Civil Judge set aside the ex parte decree on certain conditions. This order setting aside the ex parte decree in Civil Suit No. 22/58 had been passed by the the Civil Judge, Kanpur on 16th August, 1958, and on that date, Panna Lal was informed of the ex parte decree that had been passed against him in connection with another Suit No. 25/58. An appeal was filed by Panna Lal from the order dated 16th August, 1958 which was dismissed on September 25, 1958. On February 5, 1959. an advocate employed by the appellant to file a civil revision petition against the appellate order, obtained a certified copy of the order dated August 16,1958 and filed a revision petition against the appellate order on February 24, 1959. On April 16, 1959, Pannalal filed an application in the Court of Civil Judge, (Unpur under O.IX, r. 13, C.P.C, for setting aside the ex parte decree passed in another Suit No. 25/58. The Civil Judge dismissed that application and an appeal filed again the order of the Civil Judge was dismissed by the High Court. Both the Civil Judge and the High Court held that the summons in Suit No. 25/58 was not duly served on the appellant but as more than 30 days had expired after Panna Lal had knowledge of the ex parte decree in Suit No. 25/58, the application was barred by limitation. Both the Civil Judge and the High Court held that the summons in Suit No. 25/58 was not duly served on the appellant but as more than 30 days had expired after Panna Lal had knowledge of the ex parte decree in Suit No. 25/58, the application was barred by limitation. In that context, his Lordship Bachawat, J., observed that if the summons is not duly served, the defendant suffers an injury and he is entitled in the interest of justice to an order setting aside the ex parte decree provided that applies to the court within the prescribed period of limitation, which in such cases was 30 days when the applicant had knowledge of the decree. It was held that the burden of proof was on the defendant to show that the application was within time and that he had knowledge of the decree within 30 days of the application. When the defendant produces some evidence to show that the application is within time, it is for the plaintiff to rebut this evidence and to establish satisfactorily that the defendant had knowledge of the decree more than 30 days before the date of the application. Obviously, the decision of the Bombay High Court in the case of Pundlick Rowji v. Vasantrao Madhavrao, (1909) 11 Bom. LR 1296 was referred to explain the meaning of expression "knowledge of the decree" which meant knowledge not of a decree but of a particular decree which is sought to be set aside. Supreme Court stated that the test of the sufficiency of knowledge of the decree is not what the information would mean to a stranger, but what it means to the defendant in the light of his previous dealings with the plaintiff the facts and circumstances known to him. If from the information conveyed to him, the defendant had knowledge of the decree sought to be set aside, time begins to run against him under Article 163 of the Old Limitation Act. It was not necessary that a copy of the decree should be served on the defendant but it was sufficient that defendant had knowledge of the material facts concerning the decree, so that he has a clear perception of the injury suffered by him and can take effective steps to set aside the decree. It was not necessary that a copy of the decree should be served on the defendant but it was sufficient that defendant had knowledge of the material facts concerning the decree, so that he has a clear perception of the injury suffered by him and can take effective steps to set aside the decree. As is clear from the narration of facts before the Supreme Court, on 16th August, 1958 when the Civil Judge, Kanpur had allowed the application of Panna Lal for setting aside ex parte decree in Civil Suit No. 22/58, on his Miscellaneous Case No. 104/58, he was also informed by the Civil Judge of the connected decree passed in Civil Suit No. 25/1958 on that very day. Thus, clearly Panna Lal had knowledge of the ex parte decree of 16th August, 1958, when he was informed by the Civil Judge of the ex parte degree in Civil Suit No. 25/58. The application for setting aside the ex parte decree passed in Civil Suit No. 25/58 was made by Panna Lal on April 16, 1959 which was clearly held to be barred by limitation by the Supreme Court. The decision of Sohanlal v. Punamchand, AIR 1961 Raj. 32 in substance does not lay down a different law. 7. In the instant case, the defendant-appellant had alleged in his application under O. IX, rule 13, CPC, that the acquired knowledge of the ex parte decree on 30th October, 1985. In the absence of due service of summons, there was no reason to doubt the assertion of the defendant-appellant and more so, when the plaintiffs in their reply had not alleged that he had acquired knowledge of the decree on an earlier date. The District Judge has stated in his order that even if it was held that the defendant-appellant acquired knowledge of the decree on 30th October, 1985, the application for setting aside the ex parte decree, which was filed on 30th November, 1985, was barred by limitation by two days. In fact, this calculation is not correct. The date on which the knowledge was acquired should be excluded. On such exclusion, there was only a delay of one day in filing of the application for setting aside the ex parte decree. In fact, this calculation is not correct. The date on which the knowledge was acquired should be excluded. On such exclusion, there was only a delay of one day in filing of the application for setting aside the ex parte decree. For that, the defendant appellant had filed an application under Section 5 of the Limitation Act on 13th February, 1986, wherein he stated that this one day's delay took place on account of the delay caused in receiving instructions from the Head Office, which was located at Calcutta. It may be mentioned that the application for setting aside the ex parte decree had been filed by the defendant through its administrative Officer posted at Jaipur. Obviously, he had to obtain instructions from the Calcutta Head Office. In such circumstances, it would be unjust if a delay of one day is not condoned under Section 5 of the Limitation Act. 8. I, therefore, allow this miscellaneous appeal, set aside the order of the District Judge, Balotra, dated 13th February, 1986 and allow the application filed under R. 13, C.P.C., and subject to the defendant-appellant paying Rs. 300/- as costs to the plaintiffs, the ex parte decree passed in Civil Suit No. 3/85 by the District Judge, Balotra, will stand set aside. On payment of costs, the defendant-appellant shall be entitled to file a written-statement before the District Judge, Balotra on 6th April, 1987. On or before this date, the defendant-appellant shall pay the costs of Rs. 300/- to the plaintiffs and will file written-statement before the District Judge, Balotra. The parties present here are intimated through their counsels to appear in the Court of learned District Judge, signed and pronounced in open court Balotra, on 6th April, 1987.Appeal allowed. *******