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II (1992) DMC 420
S.K. Dubey, J.
Asha Choudhary
vs
Rajesh Kumar
Decided on : 28 February, 1992
EX-PARTE DECREE - SETTING ASIDE - SERVICE BY PUBLICATION - SUPPLY OF COPY OF PLAINT - JURISDICTION - LIMITATION - CONDONATION OF DELAY - ORDER 9 RULE 13 C.P.C. - SECTION 5 OF THE LIMITATION ACT - INTERPRETATION AND APPLICATION:
Fact of the Case:
The appellant/defendant challenged the dismissal of her application to set aside an ex-parte decree for dissolution of marriage. The summons were served by publication, and the appellant sent an application requesting a copy of the plaint, but no order was passed on the application. The Court proceeded ex-parte and passed an ex-parte decree for dissolution of marriage.
Finding of the Court:
The Court held that the appellant was entitled to a copy of the plaint and that the Court had no jurisdiction to proceed ex-parte against her. The Court also held that the delay in filing the application to set aside the ex-parte decree was condonable under Section 5 of the Limitation Act.
Issues: 1. Whether the appellant was entitled to a copy of the plaint after service by publication? 2. Whether the Court had jurisdiction to proceed ex-parte against the appellant? 3. Whether the delay in filing the application to set aside the ex-parte decree was condonable?
Ratio Decidendi: 1. Order 5 Rule 2 of C.P.C. provides that annexing a copy of the plaint to summons is mandatory and if the summons are served without supplying the copy of the plaint, the service cannot be deemed to be valid. 2. In the absence of the Presiding Judge, the Court should be deemed to have been closed for judicial functioning, and a party may wait for another notice. 3. While considering an application under Order 9 Rule 9 or 13, a generous construction should be placed on the enactment to restore a suit or to set aside an ex-parte decree for the default of appearance of a party, and a party should not be deprived of hearing, unless there is something equivalent to misconduct or gross negligence. 4. The approach to condonation of delay should be liberal and justice oriented, and substantial justice should be preferred over technical considerations.
Final Decision: The appeal was allowed, the application under Order 9 Rule 13 C.P.C. was allowed, and the ex-parte decree passed in Civil Suit No. 24-A/86 was set aside. The Trial Court was directed to proceed with the case expeditiously and dispose of the suit within a period of six months from 25.3.1992.
S.K. Dubey, J.
1. This appeal under Order 43 Rule l(d) of the Code of Civil Procedure, read with Section 28 of the Hindu Marriage Act, 1955 (for short the 'Act'), is against the order dt. 24.10.89 passed in Misc. Civil Case No. 7/1987, whereby the District Judge, Dewas dismissed the application of the appellant/defendant under Order 9 Rule 13, C.P.C, for setting aside the ex-parte decree dated 19.3.1987 passed for dissolution of marriage in Civil Suit No. 24-A/86.
2. Brief facts leading to this, appeal are thus: that the respondent plaintiff, the husband of the appellant/defendant, instituted a suit Under Section 13(1) (ia) & (ib) of the Act for dissolution of marriage. Of the suit the summons were not served in the ordinary manner as well as by the registered post. The registered envelope was received back with the postal endorsement of 'in complete address'. On the application of the respondent, under Order 5 Rule 20 (1-A) of C.P.C. the Court ordered for effecting service by way of publication. The publication was made in 'Daily Prasaran', wherein the date 22,1.1987 was fixed for hearing and appearance of the respondent. On 22.1.87 the Presiding Officer was on leave, therefore the clerk of the Court adjourned the case to 28.1.87. On 28.1.87 the Court adjourned the case to 28.2.87, no this day too the Presiding Officer was on leave, hence, the clerk of the Court fixed the case to 9.3.87. On 9.3.87 the Court did not proceed ex-parte against the appellant/defendant and adjourned the case to 13.3.87 marking absence of the appellant/defendant.
3. The appellant having come to know from her neighbour that the publication has been made, sent an application by registered post, which was received by the Court on 22.1.87, the date fixed for appearance, making a prayer therein to supply the copy of the plaint so that the appellant/defendant may attend and defend the case. The appellant also sent a self-addressed stampped envelope so as to receive the reply, but, no order was passed on this aplication on 22-1-87 and on 9.3.87.
4. On 13.3.87 the Court rejected the application and proceeded exparte. On 19.3.87 the statement of the respondent/husband was recorded and ex-parte decree for dissolution of marriage was passed on the aforesaid two grounds.
5. The appellant having come to know, filed an application under Order 9 Rule 13 C.P.C. for setting aside the ex-parle decree. That application was opposed on various grounds taking plea of limitation and to the proviso of Order 9 Rule 13 C.P.C. contending that the defendant had the notice of the date of hearing and had sufficient time to appear and answer the claim, therefore, the irregularity in service will not affect the validity of the ex-parte decree.
6. The Trial Court dismissed the application as barred by time, as having not been filed within 30 days from the date of passing of the ex-parte decree.
7. It is this order which has been challenged in appeal.
8. Shri R.S. Kochatta, Counsel for the appellant, Shri S.S. Samvatsar Counsel for the respondent, heard. '
9. After hearing Counsel, I am of the opinion that this appeal has to be allowed and the ex-parte decree has to be set aside, for the reasons hereinafter to follow.
10. The law is settled that as far as possible the personal service is to be affected, but, the defendant who is served by publication, appears and makes a prayer to supply a copy of the plaint to contest the suit, the Court is bound to order to supply the copy of the plaint so as to enable the defendant to know, the concise statement thereof and the particular claim brought by the plaintiff against him, and make up the mind against the claim, that is why Order 5 Rule 2 of C.P.C. provides that annexing copy of plaint to summons is mandatory and if, the summons are searved without supplying the copy of the plaint, the service cannot be deemed to be valid. See a Division Bench decision of this Court in the case of Smt, Chhutbai and Another v Madanlal and Another, AIR 1989
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