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High Court Of Madhya Pradesh
A. G. QURESHI, S. K. DUBEY
CHHUTBAI - Appellant
Versus
MADANLAL - Respondents
M. P. 672 Of 1986
Decided On : 05/05/1989
CIVIL PROCEDURE CODE - ORDER 9 RULE 13 - SERVICE OF SUMMONS - DUE SERVICE - LIMITATION - KNOWLEDGE OF DECREE - INTERPRETATION OF ARTICLE 123 OF THE LIMITATION ACT, 1963.
Fact of the Case:
Petitioners were tenants of Prahlad Das. Prahlad Das filed a suit for ejectment against the petitioners under the M. P. Accommodation Control Act, 1961. Summonses were issued to the petitioners, but the copy of the plaint was not served along with the summons. An ex parte decree was passed against the petitioners on 19-6-1965. The petitioners filed an application under Order 9, Rule 13, C. P. C. to set aside the ex parte decree on the ground that the summonses were not duly served. The application was dismissed by the trial court and the appellate court. The petitioners filed a petition under Articles 226 and 227 of the Constitution of India.
Finding of the Court:
The High Court held that the non-accompanying of a copy of the plaint with the summons was not a mere irregularity, but a failure to comply with the mandatory provisions of Order 5, Rule 2, C. P. C. The Court further held that the application under Order 9, Rule 13, C. P. C. was not barred by limitation as the petitioners did not have the knowledge of the decree within the meaning of Article 123 of the Limitation Act, 1963.
Issues: 1. Whether the non-accompanying of a copy of the plaint with the summons was a mere irregularity or a failure to comply with the mandatory provisions of Order 5, Rule 2, C. P. C.? 2. Whether the application under Order 9, Rule 13, C. P. C. was barred by limitation?
Ratio Decidendi: 1. The Court held that the non-accompanying of a copy of the plaint with the summons was not a mere irregularity, but a failure to comply with the mandatory provisions of Order 5, Rule 2, C. P. C. The Court relied on the language of Order 5, Rule 2, C. P. C. which states that "every summons shall be accompanied by copy of the plaint, or if so permitted, by a concise statement." The Court held that this provision is mandatory and that the purpose of serving a copy of the plaint is to bring home to the defendant the knowledge of a particular suit having been instituted against him so that the defendant may know what is the claim brought about by the plaintiff against him and make up the mind against the claim. 2. The Court held that the application under Order 9, Rule 13, C. P. C. was not barred by limitation as the petitioners did not have the knowledge of the decree within the meaning of Article 123 of the Limitation Act, 1963. The Court relied on the decision of the Supreme Court in Pannalal v. Amarlal (AIR 1967 SC 1384) which held that the expression "knowledge of the decree" used in Article 123 of the Limitation Act, 1963, means the knowledge of a particular decree, which is sought to be set aside. The Court held that in the present case, the petitioners did not have the knowledge of the particular decree as the notice sent by the landlord did not mention the date of the decree or the court from which the decree was passed.
Final Decision: The petition was allowed. The order of the appellate court was quashed. The appellate court was directed to dispose of the application under Order 9, Rule 13, C. P. C. within one month of the date of the appearance of the parties.
( 1 ) THIS is a petition under Arts. 226 and 227 of the Constitution of India.
( 2 ) THE material facts leading to this petition, briefly, are as follows : the petitioners and respondent 2 Natthu Prasad were the tenants of Prahladdas. Prahlad Das filed a suit for ejectment under S. 12 (1) (a), (f) and (g) of the M. P. Accommodation Control Act, 1961, against the petitioner and respondent 2, in the Court of Civil Judge, Class-II, Mhow. Summonses were issued to the petitioners and respondent 2 intimating the date of first hearing as 16th of June, 1965. The summons accompanied with a copy of the plaint was served upon respondent 2 but the summonses on the petitioners were served without the copy of the plaint. On the date fixed, i. e. 16-6-1965, the petitioners did not appear. An ex parte decree was, therefore, passed on 19-6-1965, But Prahlad Das, the decree-holder, continued to realise the rent from the petitioners and respondent 2 for sufficiently long time i. e. for about 10 years without taking any action to execute the ex parte decree and for seeking eviction. For the first time, on 18-8-1975, Prahlad Das sent a vague notice stating therein that a decree for eviction has been passed against the petitioners and claimed possession of the suit premises. No particulars i. e, date of the decree and name of the Court was given in this notice. The petitioners sent a reply dated 16-6-76 and demanded the particulars of the decree, but the particulars were not given. On the other hand, the landlord decree-holder filed an execution application, notice of which was issued to the petitioners for appearing on 23-8-1976. On receipt of this notice of the Court, the petitioners inspected the file and obtained the material particulars and, thereafter filed an application on 4-9-1976 under O. 9, R. 13, C. P. C. within 30 days of the date of knowledge of the decree, to set aside the ex parte decree on the ground that the summonses were not duly served on the petitioners. This application was contested by the decree-holder. In between the decree-holder died and his son, respondent 1 Madanlal prosecuted the proceedings as his legal representative. The trial Court dismissed the application under O. 9, R. 13, C. P. C. on 23-6-1978. Against the said order, an appeal, which was registered as Misc. Appeal No. 127 of 1988, was preferred before the District Judge, Indore, which was heard by the 6th Additional Judge to the Court of District Judge, Indore. This appeal was dismissed. Against that order, the respondent 1 preferred a revision petition before this Court, which was registered as Civil Revision No. 188 of 1980. That revision petition was allowed by this Court on 15-3-1982 holding that if the summonses are not accompanied by a copy of the plaint, then it is not an irregularity in the service of summonses but it was not due service in view of the provision of O. 5, R. 2, C. P. C. and O. 9, R. 6, C. P. C. the case was remitted to the appellate Court to decide the appeal de novo in accordance with law, after giving a categorical finding on the question as to whether a copy of the plaint was served along with the summons or not and whether the petitioner had the knowledge of the decree. If so, whether the application filed by the petitioners was barred by time or not, in view of the provisions of Art. 123 of the Limitation Act, 1963 as the words 'knowledge of the decree' are important. Article 123 of the Limitation Act contemplates 'knowledge of the decree' and not 'any decree'. This order of remand was not challenged by the respondent decree-holder. The appellate Court, vide order dated 17-1-1984 (Annexure-P 3), held that from the record and showing of the summons, it is evident that the summonses so served on the petitioners were not accompanied by a copy of the plaint. Hence, it cannot be said that the summonses were duly served on the petitioners. On the question of limitation, the appellate Court held that a notice Ex. P 4 was
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