An ex-parte decree cannot be set aside merely on the ground of irregularity in service of summons if the court is satisfied that the defendant had notice of the date of hearing and sufficient time to appear and answer the plaintiff's claim.

In a suit for specific performance the petitioner was one of the defendant, Sri Arjun Singhal, learned Counsel for the petitioner submits that no summon of the suit was ever served upon the petitioner. He was summoned to ap pear as a witness in the suit, pursuant to which he came and executed a Vakalat- nama in favour of his Counsel for the purposes of answering the summons, re quiring him to give evidence and not for a purposes of contesting the suit because there was no occasion for him to contest the suit. He further alleges that the suit was amended by order dated 14-1-1986 after the death of the defendants father. He further allegeg that he was alleged to have executed a deed in favour of the plaintiff on the basis of power of attorney executed by his father, who had subsequently revoked the said power of attorney. In fact he had never executed any deed. By virtue of amendment on the death of the defendants father it was alleged that by reason of the alleged execution of sale-deed the share of the defendant was trans ferred. Therefore the suit for specific per formance in respect of the share of the petitioner-defendant on the basis of such amendment, was decreed ex-pane on 28-7-1988. It is then contended by Sri Singhal that after the amendment was allowed the petitioner was entitled to fresh summons of the suit, particularly when he had never been summoned to contest the suit. Unless summon is issued after amendment is al lowed the suit could not have been proceed, and thus appearance of the petitioner, even if taken to be the appearance in the suit which Sri Singhal argues that the said fact is only an assumption and not admis sion. By reason of the amendment, cannot be taken to be the appearance in the suit. According to him unless fresh notice is given after the amendment is allowed the suit cannot be proceeded and it should be treated to be in absence of summons. He relies on the decision in the case of Smt. Son Kunwar Rai v. Indra Bai, 1986 (1) Current Civil Causes 1086. The said decision of Madhya Pradesh High Court was rendered by Single Judge in second appeal with regard to the point, "whether, in the facts and circumstances of the case, a notice of the amendment made by the plaintiff was mandatory to the defendant (appellant herein), irrespective of the fact that she was ex- parte when the application was made ?"

2. The facts of the case was sum marised in para 3 of the said judgment to the following effect:

"the appellant-defendant though deny ing the plaintiffs averments, has filed the writ ten statement, yet thereafter remained absent allowing the trial Court to proceed ex-parte against her. The respondent/plantilff on the day preceding the date of judgment passed by the trial Court i. e. 10-9-1979 moved an application under Order VI, Rule 17, CPC for amending the plaint. The trial Court on the same day allowed the amendment sought for without is suing notice or affording any opportunity to the appellant-defendant and on the next day i. e. 11-9-1979, delivered the judgment. "

3. On these facts the said decision was rendered. In the said case it was held:

"6. No. doubt for moving an application for amending the plaint or written statement under the provision of Order VI, Rule 16, CPC no stage is prescribed but all the same if amend ment is made or sought for, then opportunity to the other party must be afforded so that the party concerned becomes aware of what case he has to defend.

9. In the instant case it appears that as the appellant-defendant remained absent the trial Court did not think it proper to serve notice to the defendant. That is not the law. Even if the party is ex-parte, if an amendment application is made then that must be served to the party concerned and still if the party remains absent despite notice, then the court after applying its discretion may pass an appropriate order. Thus even in ex-parte case without serving the notice of amendment application to the party who remained