JUDGMENT - A.M. KHANWILKAR, J.:---Heard.

2.The short question, that arises for consideration in this petition, is whether the suit filed by the non-applicant/plaintiff deserves to be dismissed, on the ground that there was non-compliance of Order 5, Rule 2, read with Order 39, Rule 11 of the Code of Civil Procedure (hereinafter referred to as 'the Code'), as contended by the applicant.

3.After the trial Court issued process, notices were sent to the applicant by three modes; the first one was the usual service, i.e., through bailiff; the second one was by Registered Post, A.D., which was admittedly received by the applicant/defendant; and the third mode of service was after the applicant/defendant had put in his appearance, through the Advocate. In so far as the service through bailiff is concerned, it is stated by the applicant that, only copy of the summons was served without the copy of the plaint and the annexures. With regard to service by Registered Post A.D., it is stated by the non-applicant that besides notice, copy of the plaint, annexures etc. was sent and the same has been duly received by the applicant. It is not in dispute that after the applicant had put in appearance through his Advocate, who, in turn, complained to the Advocate for the non-applicant about non-service of the copy of the plaint and annexures alongwith the summons notice received through bailiff by the applicant, immediately thereafter the Counsel for the non-applicant/plaintiff took steps to furnish the entire record to the Counsel for the applicant/defendant, but the applicant's Advocate refused to accept the same.

4.In this background, an application, being Exhibit 9, came to be filed by the applicant/defendant before the 6th Joint Civil Judge (Senior Division), Nagpur, praying for dismissal of the suit, being Special Civil Suit No. 478 of 2000, under Order 5, Rule 2 read with Order 39, Rule 11 of the Code.

5.The trial Court, after considering the rival contentions, has rejected the said application (Exhibit 9), and found that it should be presumed that the relevant documents were served on the applicant along with the summons served through different modes. The observation in para 7 of the impugned order are apt and conclusively decide the point in issue. The trial Court has also relied upon the decision of the Punjab Haryana High Court reported in A.I.R. 1987 Punjab Haryana 170 (Risaldar Pakhar Singh v. Bhajan Singh)1, in support of its view that that the suit need not be dismissed merely because the copy of the plaint and annexures was not supplied to the defendant along with the summons served through bailiff.

6.The learned Counsel for the applicant/defendant has pointed out that the decision relied upon by the trial Court in Risaldar's case (supra) has been overruled by the Division Bench of the same High Court in the decision reported in (Baburam Bhatnagar v. Satish Kumar Rawal)2, 1991(2) Punjab Law Reporter 234. Reliance was placed on paras 7 and 10 of the said decision. Besides the said decision, the learned Counsel has relied on the decision of this Court reported in A.I.R. 1969 Bombay 117 (Shevaram Thadaram Jaisinghani v. Indian Oil Corporation Ltd.)3, which has taken the view that supply of copies along with the summons is essential under Order 5, Rule 2 of the Code. Reliance has also been placed on the decision of the Division Bench of Rajasthan High Court reported in A.I.R. 1977 Rajasthan 180 (M/s. General Auto Agencies, Jaipur v. Hazari Singh)4.

7.On the other hand, the learned Counsel for the non-applicant/plaintiff, besides adopting the reasons indicated in the impugned order, has pointed out that non-compliance of Order 5, Rule 2 of the Code does not visit with the dismissal of the suit, as there is no provision in the Code to that effect. According to him, reference made to Order 39, Rule 11 of the Code is totally misplaced, since this is not a case where the direction issued by the Court has not been complied with in wh

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