Service of summons without a copy of the plaint is not a valid service and the defendant does not have knowledge of the exact claim made in the plaint.

S.K.Jain, J.

1. Civil Suit No. 87 of 1980 filed by Alam Chand plaintiff-respondent against Suleman, defendant-judgment debtor-petitioner for specific performance of the agreement for sale dated 2.6,1978, was decreed ex parte on 30.4.1980 by the Senior Subordinate Judge, Gurgaon.

2. Suleman, petitioner, filed an application under Order 9, Rule 13, read with Section 151 of the Code of Civil Procedure for setting aside the ex-parte decree. It was dismissed by the Subordinate Judge, 1st Class, Gurgaon, vide order dated 21.8.1984.

3. Aggrieved from the said order, the petitioner filed Civil Appeal No. 14/14 of 1984, which was dismissed by the District Judge, Gurgaon, vide judgment dated 28.11.1984. The said judgment has been impugned in this civil revision petition.

4. Learned counsel for the petitioner has argued that both the Courts below had legally erred in coming to a conclusion that the petitioner had been duly served in the suit and, therefore, the impugned judgment was liable to be set aside.

5. On the other hand, the learned counsel for the respondent has urged that the case in hand was duly covered under the provisions of Rule 13 of Order 9, second proviso and, therefore this Court ,would not interfere with the concurrent finding of the Courts below.

6. I have given a thoughtful consideration to the rival argument. Lower Court record has been perused and the provisions of Order 9, Rule 13, second proviso has been closely examined. From the perusal of the lower court record, following facts are evolved :-

(i) Gopi Chand, Process Server, R.W. 2, had delivered a copy of the summons only to Suleman, petitioner, in the presence of Alam Chand, R.W. 3;

(ii) It has been admitted by the said Process Server in his cross-examination that copy of the plaint had not been delivered to Suleman alongwith the copy of the summons; and

(iii) Summons exhibit R.W. 2/1 for 2.4.1980 was served upon Suleman, petitioner, on 6,3.1980. The suit was for specific performance of agreement of sale dated 2.6.1978 and for possession of agricultural land measuring 15 kanals 12 marlas for a sale consideration of Rs. 20,000/- out of which Rs. 7,000/-were paid at the time of execution of the said agreement and Rs. 12,000/- were left with the vendee for payment to the mortgagees Naresh Kumar etc. and Rs. 1,000/- was to be paid at the time of registration of the sale deed which was to be executed on or before 24.8.1979. The suit was instituted on 6.2.1980 and was decreed on 30.4.1980.

7. On the basis of the above facts, learned Sub Judge 1st Class, Gurgaon had come to the conclusion that defendant has been served on 6.3.1980 for appearing in the court on 2.4.1980 and therefore, he had kaowledge of the suit and consequently, he also had the knowledge of the exparte decree dated 30-4-1980. The learned First Appellate Court had also held that since defendant had duly been served in the case, he had the knowledge of the date of hearing and passing of the impugned exparte decree. The question doing rounds right now is as to whether in the facts and circumstance of this case it can be said that on receipt of the summons, without a copy of the plaint accompanying it, the petitioner could be said to have been duly served and it could be inferred that he had the knowledge of the nature of the claim of the plaintiff in the suit against him. Identical question was considered in Babu Ram Bhatnagar v. Satish Kumar Rawal, (1991-2 ) 100 P. L. R. 234. wherein it was held as under :-

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"- - the attachment of a copy of the plaint is mandatory and no due service can be said to be effected in the eye of law until and unless copy of the plaint is attached along with the summons. The question then arises in what circumstances second proviso to Rule 13 of Order 9, C. P. C. comes into play and in what circum- stances it can be availed of by the plaintiff. In our considered view the proviso would be attracted in a very exceptional case. It can apply to such type of cases where