JUDGMENT Arun Kumar Goel, J. —This revision is directed against the judgment passed by Additional District Judge, Solan in Civil Miscellaneous Appeal No. 32-S/14 of 1994/92, dated 17-11-1995 whereby the appeal filed by respondent No. 1 against the order passed by Sub-Judge 1st Class, Kandaghat camp at Solan in case No. 64/10 of 1990/88 has been reversed. 2. Brief facts giving rise to this case are that Punjab National Bank-respondent No, 1, hereinafter referred to as the plaintiff, filed a suit for recovery of Rs. 1,62,428/70 as far back in the year 1987 wherein Ram Chand Dball-petitioner was arrayed as defendant No. 3-guarantor, herein after referred to as the defendant alongwith M/s. Ash Udyog and Som Nath Bhargawa, borrowers-defendants, hereinafter referred to as defendants 1 and 2 in the court of Senior Sub-Judge, Solan. It appears that process was ordered to be issued against the defendants and all the defendants were ordered to be proceeded against ex parte on 13-7-1987. Defendants No. 1 and 2 do not appear to be aggrieved by the ex parte decree which was passed on 24th June, 1987 by the trial Court. From the record it appears that defendant No. 3 filed two applications under Order 9, Rule 13, C. P. G\, one being 82/10 of 1988 dated 5-9-1988 and the other out of which this revision has arisen for setting aside ex parte decree and it is also dated 5-9-1988. Both these applications were presented by the same counsel on 7-9-1988 and were ordered to be registered by the court on 12-9-1988 and date given for service of the plaintiff on these applications was 14-1C-1988. When application, bearing No. 82/10 of 1988, (Ex. R-2) came up for consideration before the trial Court, it was withdrawn on 14-10-1988 and order to the following effect was passed : — "Present : Shri Shashi Pandit, Advocate, for applicant. None for respondent." Learned Counsel for applicant, Shri Shashi Pandit, states at the Bar that he does not want to press the present application. In this view of the matter, the application stands dismissed as not pressed. Be consigned to records. Thus the other application remained for consideration before the trial Court. At this stage it may be appropriate to reproduce the averments made in Ex. R-2, which application was later on withdrawn by the defendant No. 3. For ready reference the relevant averments made in Ex. Be consigned to records. Thus the other application remained for consideration before the trial Court. At this stage it may be appropriate to reproduce the averments made in Ex. R-2, which application was later on withdrawn by the defendant No. 3. For ready reference the relevant averments made in Ex. R-2 by the plaintiff are extracted hereinbelow : "2. That applicant on receipt of summons engaged Shri D. P. Gautam Advocate from Faridabad to conduct his case. 3. That unfortunately Shri D. P. Gautam, Advocate who had instructed the applicant that as and when his personal presence will be required, intimation will be sent and then he should contact the said Advocate for gotten to note down the case in his diary and the papers had been misplaced by his clerk. Due to the said reason Shri D. P. Gautam never required applicant to contact him in connection with the case which was pending in the Honble Court titled as P. AT B. v. Mjs. Ash Udyog etc. 4. That on 11-8-1988 applicant came to know that Shri Gautam has not attended the Honble Court and ex pane judgment and decree has been passed in the case. Applicant came to know about these facts when he appeared in the court of Senior Sub-Judge Faridabad, to which judgment and decree has been transferred for execution." Similarly the averments made in the application, out of which the present case has arisen by defendant No. 3, are also extracted hereinbelow :— "2. That applicant never received any intimation information and summons of the above titled case, it is only on 11-8-1988 when applicant appeared in the court of Senior Sub-Judge Faridabad, then came to know that a decree in a civil suit titled as Punjab National Bank, Parwanoo v. Ash Udyog etc., has been passed on 26-8-1S87 3. That no summons etc. ; have been served upon the applicant, so applicant had no knowledge about the pendency of the civil suit in the Honble Court and there was no question of appearing in the court either in person or through counsel. 4. That on the basis of some wrong report applicant has been proceeded ex parte on 13-7 1987 and, thereafter a judgment and decree against the applicant has been passed on 26-8-1987. 5. That absence of applicant in the above titled case was neither intentional nor willful. 4. That on the basis of some wrong report applicant has been proceeded ex parte on 13-7 1987 and, thereafter a judgment and decree against the applicant has been passed on 26-8-1987. 5. That absence of applicant in the above titled case was neither intentional nor willful. There are sufficient reason to set aside ex parte orders, judgment and decree passed against the applicant and further no loss or prejudice is likely to be caused to the respondents, in case the case is decided afresh on merits. After the plaintiff bank had filed reply to this application the trial Court framed following issues :— , 1. Whether there are sufficient grounds to set aside the ex parte decree dated 26-8-1987 ? OPA 2. Whether the application is within time ? OPA 3. Whether the applicant is estopped from filing the application by his act and conduct as alleged ? OPR 4. Relief. Defendant No. 3 appeared as AW 1 and stated that he came to know about the decree when he received summons of attachment at Faridabad and then he went to the court of Senior Sub-Judge, Faridabad. Thereafter, after 10/15 days, he came to Solan and he learned about the case In that case he never received a copy of the suit He further stated that Veena is his daughter, aged 31/32 years and was married in 1982. He also stated that Veena had informed him when he came home that summon from Solan was received and on his inquiry, she informed that the papers have been misplaced. At such point of time he contacted Shri D P Gautam, Advocate of Faridabad, who told him that as and when other papers are received by him, then he will advise him. However, defendent No. 3 never received any summons or copy of suit from the court. In his cross examination, he admits that Ex. R-i was got drafted by him from his counsel and it had been drafted as per his instructions He denies the said application having been decided. However, he feigns ignorance that this application was got dismissed by his counsel as not pressed On the other hand, Shri Virender Kumar Assistant Manager of plaintiff bank at Parwanoo Branch appeared as a witness on behalf of the plaintiff. Besides this, plaintiff bank tendered in evidence copies of Exs R-l to R-4 before the trial Court. However, he feigns ignorance that this application was got dismissed by his counsel as not pressed On the other hand, Shri Virender Kumar Assistant Manager of plaintiff bank at Parwanoo Branch appeared as a witness on behalf of the plaintiff. Besides this, plaintiff bank tendered in evidence copies of Exs R-l to R-4 before the trial Court. After the conclusion of the trial, the trial Court dismissed the application of defendant No. 3 and in appeal, preferred by him, the lower appellate Court below allowed the appeal, thereby allowing the application under Order 9, Rule 13f C. P. C. and consequently the ex parte decree dated 26-8-1987 had been set aside, hence this revision at the instance of the plaintiff bank. 3. From the averments made in both the applications filed under Order 9> Rule 13, O. P C , it is clear that it was nowhere the case of defendant No. 3 while praying for setting aside ex parte decree that the service being not in accordance with law as copy of plaint did not accompany the summons as such the ex parte proceedings ordered to be taken against him on 13-7-1987 by the trial Court are defective. On the other hand in Ex. R-2, the case of defendant No. 3 was specific that after receipt of summons, he engaged Shri D: P. Gautam, Advocate from Faridabad to conduct his case. He nowhere speaks of non-receipt of copy of plaint in this application. Whereas in the application, out of which the present case has arisen, defendant No. 3 has stated that he never received any intimation, information and summons of the above titled suit and he has tried to project that it was only on 11th August, 1988, when the applicant appeared in the court of Senior Sub Judge, Faridabad, then he came to know that a decree in Civil Suit, titled as Punjab National Bank, Parwanoo v. Ash Udyog, has been passed on 26-8-198^. He again reiterates in this application that no summons etc have been served upon him and he had no knowledge of the pendency of the Civil Suit before the trial Court and thus there was no question of his appearing either in person or through counsel In this application he has further stated that on the basis of some wrong report, defendant No. 3 has been proceeded against ex parte on 13-7-1987 and thereafter ex parte decree has been passed on 26-8-1987 against him. 4. In the light of above averments, the case of defendant No. 3 has to be examined in the present revision petition. The stand taken up by defendant No. 3 in Ex. R-2 and the application where on the impugned order has been passed by the lower appellate Court is totally self contradictory and mutually destructive of each other. While in Ex. R-2, he admits that after receipt of summons, he had engaged Shri D P. Gautam, Advocate, Faridabad to conduct his case whereas there is not even a murmur of this fact in the subsequent application by him. Similarly in the applications, defendant No. 3 has made a sweeping averment that he never received any intimation, information and summons in the suit upon him and no summons etc. were served upon him and thus he had no knowledge about the pendency of the suit. Not only this, but in this application he has further gone on record to say that it was only on 11 8 1988 when he appeared in the court at Faridabad that he came to know about the decree, dated 26-8-1987. This clearly establishes that defendant No. 3 did not come to the court with clean hands and also did not state facts correctly. This clearly establishes that defendant No. 3 did not come to the court with clean hands and also did not state facts correctly. This court is further constrained to hold that defendant No, 3 was well aware regarding filing of the suit by the bank against him and his having been arrayed as defendant No. 3 therein, as well as of the date i e, 13-7-1987, In this context if the contents of both the applications filed by him under Order 9, Rule 13, C. P. C , which have been extracted hereinabove in this judgment, are considered alongwith the statement made by him on oath in court, it will be seen that this defendant No. 3 was well aware regarding filing of the suit by the petitioner in the trial Court. Defendant No. 3 admits that his daughter had informed him regarding some summons/papers having come from Solan. On his inquiry regarding the papers, his daughter informed that those have been lost. In case the papers had been lost, then his stand that he did not receive copy of summons does nol appear to be correct. Not only this, his further plea that after he had engaged Shri D. P. Gautam, Advocate, from Faridabad to conduct this case and said Advocate having informed him that on receipt of other papers he will inform or that papers would be received again by this defendant does not seems to be correct and is purely an after thought. This stand appears to have been taken by defendant No. 3 either after having looked into the file of the trial Court and their being no mention of the copy of the plaint having accompanied the summons sent by the court to him This view of the court is further strengthened from the fact that the defendant No. 3 has not taken a definite stand either in Ex. R-2 or the other application filed by him under Order 9, Rule 13, C. P. C In this view of the matter the view taken by the lower appellate Court in the facts and circumstances of the case does not appear to be correct. 5. R-2 or the other application filed by him under Order 9, Rule 13, C. P. C In this view of the matter the view taken by the lower appellate Court in the facts and circumstances of the case does not appear to be correct. 5. No doubt, in law the plaint has to accompany the summons issued by the court under Order 5, Rule 2, C. P. C so as to ensure that there is proper service in accordance with law and at the same time non-accompanying of the copy of plaint is not such an illegality which may call for setting aside the ex parte decree At the most it is an irregularity in service of summons. This position is clear from the second proviso added to Order 9, Rule 13 by C PC. (Amendment) Act, 1976 which came into force w. e. f. 1st February, 1977. In this case, it is admitted case of the plaintiff that he was made aware by his daughter, Veena. The purpose of issuing summons by the court is to appraise a party of the pendency of the proceedings in a particular lis before a court The intention of adding second proviso to Order 9, Rule 13, C. P. C, which came into force w. e. f. 1-2-1977, appears to be salutary that after a party is made known about a date of hearing then by appearing in court a grievance could be made regarding non-supply of copy of the plaint Otherwise simply because copy of plaint did not accompany the summons would unnecessarily result in delaying the matter. It may not be out of place to mention that provisions of Order 5 regarding service of summons in a Us have to be read ia conjunction with the provisions of Order 9 of the Civil Procedure Code. It may not be out of place to mention that provisions of Order 5 regarding service of summons in a Us have to be read ia conjunction with the provisions of Order 9 of the Civil Procedure Code. 6 Shri Dinesh Sharma, learned Counsel appearing for the defendant, has placed reliance 19)0 (i) SLC 27, Girish Kumar Mehra v. K. K. Sharma Branch Manager, Bank of India and K. K Sharma v, Girish Kumar Mehra and another judgment, reported in AIR 1989 MP 330, Smt, Chhutbai and another v Madanlal and another So far the ratio of later case is concerned, it was a case prior to the second proviso to Order 9, Rule 13, C. P. C. having been added to it and in the said case after passing of the decree the landlord had continued to realize rent from his tenant for a long period of 10 years thereafter, he issued a notice for possession. That judgment is wholly inapplicable in the face of legal position as also it is a judgment on its own facts, Similarly the ratio of judgment of this court passed in the case of K K. Sharma (supra), is also inapplicable, In the said case the party concerned had taken a definite stand regarding non-receipt of copy of plaint alongwith the notice Whereas in the present case admittedly, it has come in evidence of defendant No 3, when he appeared in support of application, that he was informed by his daughter regarding summons having come from Solan and on his inquiry her having informed defendant No. 3 that the papers have been lost, In this view of the matter, the ratio of the said judgment also does not help defendant No 3 in support of his case. On the other hand, Shri Ajay Kumar, learned Counsel appearing for the plaintiff back, has submitted that even if the service was defective as alleged by defendant No. 3, still it is merely an irregularity and, therefore, the lower appellate Court has fallen into error by setting aside the ex parte decree, He has further submitted that defendant No. 3 had notice of the date of hearing in the suit and in case papers had been lost, as informed by the daughter of this defendant, then it was his bounden duty to have appeared in court and made arrangement for the defence of his case and he has further pointed out that there is a valid service in law because admitedly when the summons were served upon the daughter of defendant No, 3, Veena, she was residing with him at that point of time, though married, Besides this, in both the applications stand of defendant No 3 is inconsistent as per learned Counsel, for which he must fail. 7. A bare reading of Order 5 clearly goes to show that the words used therein are —who is residing with him\ and not who ordinarily resides with him, Who is residing with him has to be read in presents that is at the time when summons are taken for service by the Process Serving Agency. All these submissions on the part of learned Counsel for the petitioner bank have great substance and deserve to be upheld, Shri Ajay Kumar hasplaced reliance in support of his said submissions on cases reported in ACR 1987 P& H 170, Risaldar Pakhar Singh (deceased by L. Rs ) and others v Bhajan Singh (deceased by L, Rs ) and others and AIR 1985 Pat 116, Mali Ram Sharm2 andanother v Smt Gayatri Devi. Both these cases squarely cover the case of the plaintiff bank. 8. Both these cases squarely cover the case of the plaintiff bank. 8. In this context of the service of summons, with copy of notice, a Division Bench of this court in F. A O. No. 147 of 1.991, H P Milk Federation v. Sunni Devi and others, it has been held that the provisions of Order 5, Rule 2, C. P C are mandatory and service of summons without copy of plaint is not due service as envisaged under Order 9, Rule 13, C. P. C and in such circumstances, ex parte proceedings cannot be undertaken so as to result in passing of an ex parte decree. I have gone through this decision but the second proviso added to Rule 13 of Order 9, C. P. C. was not considered in the said judgment and further looking to the facts of the present case, the decision in that case is distinguishable on facts as well as evidence and pleadings of the present case, as such the ratio of this Division Bench judgment also does not cover the case of defendant No, 3, It may not be out of place to reiterate here that when the papers had been lost whether the copy of plaint accompanied with summons received by his daughter according to defendant No. 3 when he appeared as AW 1 or not, cannot be made out in the facts of the present case. No other point has been urged by the learned Counsel for the parties. 9. In the light of above discussion, the view taken by the lower appellate Court on the materials on record was not correct and accordingly judgment dated 17-11-1995, passed by it allowing the appeal of defendant No. 3 and setting aside ex parte decree dated 26-8-1987 is set aside and the order passed by the trial Court is restored, consequently the application filed by defendant No. 3 under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree in the suit is dismissed with costs. Cost quantified at Rs. 2,000. Suit dismissed.