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2007 Supreme(Ori) 96
2007 (I) OLR (SC) — 621
S. B. SINHA AND MARKANDEY KATJU, JJ.
M/s. Nahar Enterprises... Appellant
Versus
M/s. Hyderabad Allwyn Ltd. and another... Respondents
Civil Appeal No.714 of 2007
(Arising out of SLP (C) No.2803 of 2005)
Decided on 9th February, 2007.
Headnote:1. CIVIL PROCEDURE CODE, 1908 - Order 9, Rule 6(1)(c) - Oder 9, Rule 13 - Civil suit - Ex parte decree - Summons sent to defendant, but served upon defendant after the date fixed for appearance - It was obligatory on the part of the Court to fix another date for his appearance and filing written statement and direct the plaintiff to take steps for service of fresh summons - Court committed an illegality in dismissing the application for setting aside the ex parte decree - A fit case where the Court should have exercised its jurisdiction under Order 9, Rule 13, C.P.C.
(Paras - 9 to 11)
2. CIVIL PROCEDURE CODE, 1908 - Order 5, Rule 2 - Service of summons - When a summon 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, C.P.C.
(Para - 9)
3. CIVIL PROCEDURE CODE, 1908 - Order 9, Rule 13 - Money suit for recovery of Rs. 1.87 lakhs - Ex parte decree passed due to non-appearance of defendant - Apex Court set aside the ex parte decree - Held, however such an order need not be wholly unconditional one - Imposition of such condition is permissible under Order 9, Rule 13, C.P.C. - Defendant to deposit Rs. 15,000/- before the Court below. (Paras - 13 to 15)
4. LIMITATION ACT, 1963 - Art. 123 - C.P.C. - Order 9, Rule 2 - Ex parte decree - Setting aside of - No evidene of service of summons - An applicant would be deemed to have knowledge or passing of the said ex parte decree would be the date from which the limitation will begin to run. (Para - 12)
Key Points: - Appellant challenged ex parte decree dated 13.12.1988 and sought setting aside; High Court and trial court dismissed; judgment ultimately directed deposit of Rs.15,000 by appellant (Rs.15,000 condition) (!) (!) (!) - Court held summons served on 14.10.1988 but copy of plaint not annexed; court failed to fix a fresh date for appearance and filing written statement; illegality in dismissing setting-aside application; jurisdiction under Order 9 Rule 13 CPC applicable (!) (!) (!) (!) - Provisions: Order 5 Rule 2 requires copy of plaint annexed to summons; absence of copy hampers written statement; Order 9 Rule 6(1)(c) allows postponement if summons served but not in sufficient time; directs fresh summons and appearance (!) (!) (!) - Limitation: Article 123 CPC; where service was not proper, second part of Art.123 applies to knowledge of ex parte decree; not barred by limitation in this case due to improper service (!) (!) - Judgment set aside ex parte decree; appeal allowed; deposit of Rs.15,000 within six weeks; no costs (!) (!)
How to set aside an ex parte decree when summons were served after the date fixed for appearance?
What is the duty of the Court under Order 5 Rule 2 and Order 9 Rule 6(1)(c) CPC when summons are served late?
What are permissible conditions under Order 9 Rule 13 CPC when setting aside an ex parte decree?
JUDGMENT
S. B. SINHA, J. — Leave granted.
2. Heard the learned counsel for the parties.
3. The appellant is before us aggrieved by and dissatis¬fied with the judgment and order dated 28.6.2004 passed by a learned Single Judge of the High Court of Andhra Pradesh at Hyd¬erabad 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 to 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 fixed 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 decree was filed on 13.12.1991. By an order dated 17.1.1992 the learned Judge, City Civil Court, Hyd¬erabad dismissed the said application inter alia opining :
6. (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.
7. An appeal preferred there-against was dismissed by the High Court by reason of the impugned judgment.
8. 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 implica¬tion of : (i) the provisions of Order 5 Rule 2 of CPC; (ii) provi¬sions of Order 9 Rule 6(1) (c) of CPC; and (iii) the provisions of Article 123 of the Limitation Act.
9. 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 ap¬pended 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 accompanied by a copy of the plaint.”
10. 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 summon 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
