The second proviso to Order 9 Rule 13 of the Civil Procedure Code cures the irregularity in the service of summons if the defendant had knowledge of the date of hearing and sufficient time to appear and defend the proceedings.

1. This revision petition has been filed by the plaintiff against the order of the Additional District Judge, Ludhiana dt. 2nd Feb., 1979.

2. Briefly the facts are that the plaintiff-petitioner filed a suit against the defendants for declaration that he was the owner of the land in dispute. The defendants were served with summonses under registered post for 27th Dec., 1973. Bhajan Singh and Jagjit Singh, defendants Nos. 1 and 2, did not appear on that date and were proceeded against ex parte. The case was adjourned to 10th Jan., 1974 for the written statement of Karam Singh defendant 3. On 10th Jan., 1974 Karam Singh, defendant 3, admitted the claim of the plaintiff in his written statement. On 28th March, 1974 a decree was passed in favour of the plaintiff.

3. The defendants Nos. 1 and 2 filed an application for setting aside the ex parte decree on 24th Oct., 1975 and they pleaded that they came to know about the ex parte decree on 16th Oct., 1975 when a copy of the application under S.152 of the Civil P.C. for amendment of the judgement was supplied to them on behalf of the plaintiff. Consequently they prayed that the ex parte decree be set aside and they be allowed to contest the suit. The application was opposed by the plaintiff who inter alia pleaded that the application was beyond limitation and there were no sufficient grounds for setting aside the ex parte decree.

4. The learned trial Court held that there was proper service on the defendants, that they failed to appear in the Court on 27th Dec., 1973 and that the application was barred by limitation. Consequently it dismissed the same. The defendants went up in appeal before the Additional District Judge, Ludhiana who came to the conclusion that the summonses served upon defendants 1 and 2 were not accompanied by copies of the plaint and, therefore, it could not be held that the defendants had been duly served. It also held that the defendants came to know about the decree on 16th Oct., 1975 and, therefore, the application for setting aside the ex parte decree was within limitation. Consequently it accepted the appeal and set aside the ex parte decree dt. 28th March, 1984 against defendants 1 and 2. The plaintiff has come up in revision to this Court.

5. It is contended by Mr. Ujagar Singh that defendants 1 and 2 had been served with summonses for 27th Dec., 1973 and they had the knowledge of the date of hearing. If the copies of the plaints were not attached with the summonses served upon them it was to be treated as a mere irregularity under the second proviso to O.9, R.13 of the Civil P.C. Therefore, the defendants cannot plead that they had no knowledge about the date of hearing. The application for setting aside the ex parte decree has been filed after more than 1½ years and thus it is clearly barred by limitation. On the other hand, Mr. Majithia has submitted that under O.5, R.2 of the Code it was mandatory that copies of the plaint should have been annexed with the summonses served upon defendants 1 and 2 and in the absence of the copies of the plaint it was no service in the eye of law. According to him, second proviso to O.9, R.13 applies in case there is irregularity in the service and not if there is illegality therein. In support of his contention he has placed reliance on M.G. Dua V/s. Balli Mal Nawal Kishore, AIR 1959 Punj 467, Jagat Ram V/s. Shanti Sarup, (1965) 67 Pun LR 45 : (AIR 1965 Punj 175), Kesar Singh V/s. Tara Chand, (1971) 73 Pun LR 198, Jagan Nath V/s. Tek Chand, (1974) 76 Pun LR 339, Parma Nand Bhalothia V/s. Adarash Oil Mills, (1976) 78 Pun LR 485, Smt. Hiren Ghosh V/s. Smt. Sasikala Padhi, (1984) 57 Cut LT 494, Karnail Singh V/s. Dina Nath, (1985) 2 Rent LR 539 and Bheru Lal V/s. Shanti Lal, AIR 1985 Raj 53.

6. I have duly considered the arguments of the learned counsel. O.5, R.2 of the Code provides that every summons shall be accompanied by a copy of the plaint or if so permitted by a concise statement. O.9, R.13 relates to setti