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1988 Supreme(J&K) 168
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
R.P. Sethi, J.
Krishan Lal - Appellant
Versus
Mohinder Nath - Respondent
Civil Revision No. 187/1988
Decided On : 07 October, 1988
Advocate For Appellant: S.C. Subash
Advocate For Respondent: Adarsh Sharma
The mandatory provisions of Order 5 Rules 2, 19, and 19A of the CPC regarding the service of summons must be strictly complied with in order for ex-parte proceedings to be valid.
Headnote:
CIVIL PROCEDURE CODE - O. 5 R. 2, 19, 19A - EX-PARTE DECREE - SETTING ASIDE - SERVICE OF SUMMONS - MANDATORY PROVISIONS - NON-COMPLIANCE - EFFECT - LIMITATION ACT, 1963 - ART. 164 - APPLICATION TO SET ASIDE EX-PARTE DECREE - LIMITATION - KNOWLEDGE OF DECREE.
Fact of the Case:
Plaintiff filed a suit for declaration of ownership of a house and obtained an ex-parte decree against the defendant. The defendant filed an application to set aside the ex-parte decree, which was dismissed by the trial court. On appeal, the appellate court set aside the ex-parte decree and judgment. The plaintiff filed a revision petition against the appellate court's order.
Finding of the Court:
The High Court held that the service of summons on the defendant was not in accordance with the mandatory provisions of Order 5 Rules 2, 19, and 19A of the Civil Procedure Code (CPC). The court found that the summons was not accompanied by a copy of the plaint and that the defendant was not served by registered post. The court also held that the defendant's application to set aside the ex-parte decree was within the limitation period of 30 days under Article 164 of the Limitation Act, 1963.
Issues: 1. Whether the service of summons on the defendant was in accordance with the mandatory provisions of Order 5 Rules 2, 19, and 19A of the CPC? 2. Whether the defendant's application to set aside the ex-parte decree was within the limitation period of 30 days under Article 164 of the Limitation Act, 1963?
Ratio Decidendi: 1. The court held that the service of summons on the defendant was not in accordance with the mandatory provisions of Order 5 Rules 2, 19, and 19A of the CPC. The court found that the summons was not accompanied by a copy of the plaint and that the defendant was not served by registered post. The court relied on the following legal principles: * Order 5 Rule 2 of the CPC mandates that every summons issued to the defendant shall be accompanied by a copy of the plaint. * Order 5 Rule 19A of the CPC mandates that the court shall, in addition to, and simultaneously with, the issue of summons for service, also direct the summons to be served by registered post, acknowledgement due addressed to the defendant. * The object of serving a copy of the plaint upon the defendant is to intimate him the nature of the proceedings initiated against him so that he may prepare with his defence or may not choose to contest the claim of the opposite party. 2. The court held that the defendant's application to set aside the ex-parte decree was within the limitation period of 30 days under Article 164 of the Limitation Act, 1963. The court found that the defendant had come to know about the passing of the decree on 17.4.84 and presented that petition for setting aside the same on 20.4.1984, well within thirty days from the date of the knowledge.
Final Decision: The High Court dismissed the revision petition and set aside the ex-parte decree and judgment passed by the trial court.
I have heard the learned counsel for the parties and have perused the record.
2. Matu Khan the process server of the court in his statement recorded on 12.3.1986 has admitted that the summon handed over to him for service upon the defendant was not accompanied by the copy of the plaint. It is also admitted that no notice was sent to the defendant through registered post.
3. O. 5 R. 2 of the C. P. C provides that every summons issued to the defendant shall be accompanied by a copy of the plaint, or if so permitted by a concise statement. Service of the summons has to be made by delivery or tendering a copy thereof signed by the Judge or such officer as he appoints in that behalf, and sealed with the seal of the court. The summons have to be served upon the defendant in person unless he has an agent empowered to accept the service. In case of refusal to accept the service or where the serving officer, after using all due and reasonable diligence cannot find the defendant, who is absent from his residence at the time when service is sought to be affected on him at his residence and there is no likelihood of his being found at the residence within the reasonable time the serving officer is obliged to affix a copy of the summons on outer door or other conspicious part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and return the original to the court from which it was issued wi
