1980 Supreme(MP) 701

IN THE HIGH COURT OF MADHYA PRADESH
P.D. Mulye, J.
Gupta Sahitya Sadan – Appellant
Vs.
Sanchalak, M.P. Pathya Nigam – Respondent
C. Revn. No. 343 of 1977 (I)
Decided On : 16-04-1980

Headnote:(1) Civil Procedure Code, 1908 - S 115 (1) (c) - 'illegality' and 'irregularity' - distinction between - whether the powers to revise are confined to only irregu - larities.

       (2) Civil Procedure Code, 1908 - O. 5, R. 2 - provision under - whether mandatory - summons not accompanied with copy of plaint - nature of service there of what is.

       (3) Civil Procedure Code, 1908 - O.9, R. 13 - setting aside of ex parte decree under - grounds for - summons served without copy of plaint - whether a valid ground.

       Short Note

       1. The learned trial Court came to the conclusion that mandatory provisions of Order 5, rule 2 CPC have not been followed, it being an illegality and not merely an irregularity, the ex parte decree deserves to be set aside.

       2. The learned counsel for the applicant relying upon the additional proviso which has been incorporated by the local M. P. Amendment in Order 9, rule 13 CPC contended that mere irregularity in the service of summons cannot be a ground for setting aside ex parte decree if the Court is satisfied that the defendant knew or but for his wilful conduct would have known of the date of hearing. He, therefore, submitted that admittedly the summons was served on 25 - 4 - 75 when the non - applicant No.1 had the knowledge and sufficient time to appear before the trial Court on 8 - 5 - 75 which was the next date of hearing and consequently even though a copy of the plaint was not accompanied by the summons still the learned trial Court has committed an illegality in setting aside the ex parte decree.

       3. Held: I am not inclined to agree with this submission. Order 5 of the Code of Civil Procedure lays down the formalities which have to be complied with in serving the defendant. Except in those cases where there is no service 'at all, any departure there from neglect of or non - compliance with the prescribed formalities will make the service irregular. Order 5, rule CPC specifically provides that the summons shall be accompanied by a copy of the plaint or a concise statement thereof. This is a mandatory provision. When the Legislature itself used the two words of' ilegality' and 'irregularity, as in section 115 of the Cede, the distinction may be drawn between the two. But when the Legislature uses only the word 'irregularities' and also provides the test to determine what irregularities are contemplated with the statutory provision, the introduction of a distinction between 'irregularity' and 'illegality' and confining the provisions to the former can only lead to confusion.

       4. Order 9. rule 13 CPC provides that in a case in which a decree was passed ex parte against the defendant, he may apply to the Court by which the decree was passed for an order to set aside and if he satisfies the Court that the summons was not duly served on him or that he was prevented by sufficient cause from appearing when the suit was called for hearing, the court may set aside the ex parte decree. In the instant case we are concerned to see whether the defendant could satisfy the Court below that the summons was not duly served. Admittedly the summons sought to be served was not served satisfactorily as the same was not accompanied by a copy of the plaint. The summons no doubt indicated the name of the Court, the suit number and the next date of hearing as per form prescribed for the summons. The law also is that along with the summons the copy of the plaint should be served'. The copy of the plaint is very much essential. In this case that provision has not been complied with, No summons with the copy of the plaint was sent by registered post. Thus, there has not been substantial compliance with the law laid down for the service of summons upon the defendant. In the present case the issue of summons by registered post was at best an intimation to the defendant about the suit, but issue of such a summons cannot take the place of the service of the summons as contemplated by Order 5, rule 2 CPC. It is, therefore, clear that the summons which was served upon the non - applicant No.1, did not contain particulars to satisfy the requirement of summons, In these circumstances the proviso does not help the applicant which only speaks of 'irregularity' and not 'illegality' and consequently in the present case service of summons having been not accompanied by a copy of the plaint, the same cannot be said to be a mere 'irregularity' but 'illegality'. Revision dismissed.