IMPORTANT POINT
When a summons is sent to defendant to appear in Court and file his written statement, it is obligatory on part of Court to send a copy of plaint and other documents appended thereto.

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. Heard the learned counsel for the parties.

3. The appellant is before us aggrieved by and dissatisfied with the judgment and order dated 28.6.2004 passed by the learned Single Judge of the High Court of Andhra Pradesh at Hyderabad dismissing the appeal preferred against an order dated 19.7.1996 passed by Addl. Civil Judge, Hyderabad in I.A.No.6/1992.

4. The respondent herein filed a suit for recovery of a sum of Rs. 1,87,904.62 with future interest at the rate of 18.5% per annum against the appellant. It appears that in the summons sent to the appellant, 10.10.1988 was fixed for his appearance. However, as the summons had not been served the Court adjourned the matter to 2.12.1988. Summons were served on the appellant on 14.10.1988, but according to him a copy of the plaint was not annexed thereto. He sent a telegram on 17.10.1988 and also a letter to the Court concerned but, admittedly, the same was not responded to. Without issuing any further summons fixing another date for his appearance, the Court fixed a date and having found the appellant absent on that date, fixed another date for ex-parte hearing. On 13.12.1988 the suit was decreed with costs.

5. An execution case was filed by the respondent herein to execute the said decree. According to the appellant, the bailiff came to serve a copy of summons on him on 2.12.1991. The said summons having been served upon the appellant, he came to learn that ex-parte decree has been passed. An application for setting aside the said ex-parte filed on 13.12.1991. By an order dated 17.1.1992 the learned Judge, City Civil Court, Hyderabad dismissed the said application inter alia opining:

(1)Non-receipt of a copy of the plaint and documents along with the summons cannot be a ground to set aside an ex-parte decree.

(2)Moreover, since there was no report about the service of summons on 10.10.1988, there was no necessity to serve fresh summons.

(3)An ex-parte decree having been passed on 13.12.1988 and an application for setting aside the ex-parte decree having been filed on 13.12.1991, the same was barred by limitation.

6. An appeal preferred thereagainst was dismissed by the High Court by reason of the impugned judgment.

7. Mr. Prakash Shrivastava, learned counsel appearing on behalf of the appellant would submit that the Trial Court as also the High Court committed a manifest error in passing the impugned judgment in so far as it failed to consider the implication of : (i) the provisions of Order 5 Rule 2 of CPC; (ii) provisions of Order 9 Rule 6(1)(c) of CPC; and (iii) the provisions of Article 123 of the Limitation Act.

8. The learned counsel appears to be correct. When a summons is sent calling upon a defendant to appear in the Court and file his written statement, it is obligatory on the part of the Court to send a copy of the plaint and other documents appended thereto, in terms of Order 5, Rule 2 CPC.

Order 5 Rule 2 of the CPC reads as under:

“Copy of plaint annexed to summons.— Every summons shall be accompained by a copy of the plaint.”

9. The learned Judge did not address itself the question as to how a defendant, in absence of a copy of the plaint and other documents, would be able to file his written statement. The Court, furthermore, in our opinion, committed a manifest error in so far as it failed to take into consideration that the summons having been served upon the appellant after the date fixed for his appearance, it was obligatory on its part to fix another date for his appearance and filing written statement and direct the plaintiff to take steps for service of fresh summons. This legal position is explicit in view of the provisions of Order 9 Rule 6(1)(c) of CPC which reads:

“When summons served but not in due time —If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day