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MARKANDEY KATJU, S.B.SINHA
Nahar Enterprises – Appellant
Versus
Hyderabad Allwyn Ltd. – Respondent
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 (!) (!)
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 dec
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