1991 Supreme(MP) 121

S.K. Dubey, J.
Daulatram v. Ishwari Prasad
M.A. No. 99 of 1988(G); Decided on 6.3.1991.

Headnote:(1) Civil P.C., 1908 -- O. 5, R. 2 -- summons of suit not accompanied by copy of plaint - no valid service effected - provision is mandatory.

        (2) Civil P.C., 1908 -- O. 9, R. 13 -- defendant served without copy of plaint -- summons not validly served -- ex parte decree should he set aside.

        (3) Practice (Civil) -- reader of the Court -- cannot fix date of hearing.

        (4) Civil P.C., 1908 -- O. 9, R. 7 -- date not fixed for hearing -- defendant cannot be proceedded ex parte.

       ¼1½ flfoy Áfdz;k lafgrk] 1908 && vk-5] fu-2 && okn ds leu ds lkFk okni= dh izfr ugha Hksth xbZ && fof/kekU; rkehy ugha gqbZ && mica/k vkKkid gSA

        ¼2½ flfoy Áfdz;k lafgrk] 1908 && vk-9] fu-13 && izfroknh dks okni= dh izfr ds fcuk rkehy dh xbZ && leu dh fof/kekU; :i ls rkehy ugha gqbZ && ,di{kh; fMdzh vikLr dh tkuk pkfg,A

        ¼3½ izFkk ¼flfoy½ && U;k;ky; dk is‘kdkj && lquokbZ dh rkjh[k fu;r ugha dj ldrkA

        ¼4½ flfoy Áfdz;k lafgrk] 1908 && vk-9] fu-7 && rkjh[k lquokbZ ds fy, fu;r ugha dh xbZ && izfroknh ds fo:) ,di{kh; dk;Zokgh ugha dh tk ldrhA

        Shri M.M. Kaushik, counsel for the appellant, and Shri N.K. Jain, counsel for the respondent, were heard. For deciding this appeal few relevant facts and dates are necessary. The plaintiff/respondent instituted a suit for recovery of Rs.71,044. Summons was issued to the defendant for his appearance on 18.6.1985, but, admittedly, as required under O. 5, R. 2, CPC, the summons was not accompanied by a copy of the plaint, or by a concise statement. The appellant appeared on 18.6.1985 and asked for a copy of the plaint; the Court ordered that the copy of the plaint be supplied and 18.7.1985 was fixed as the next date. On 18.7.1985 the Presiding Judge was on leave; the Reader of the Court adjourned the case to 7.8.1985. On this date the appellant did not appear. It is said that the copy of the plaint was filed in the Court by the plaintiff on this date. As the defendant was absent the Court proceeded ex parte and, ultimately, ex parte decree was passed on 23.4.1986. When the decree-holder/plaintiff went to attach the property in realisation of the decree on 30.7.1986 the defendant/appellant having come to know this, applied for setting aside the ex parte decree, on 29.8.1986. The trial Court after inquiry held that the application was barred by time.

        Shri Kaushik contended that the provisions of O.5, R. 2 CPC, are mandatory and any service without accompanying a copy of the plaint or a concise statement is not valid, and the ex parte decree on this count alone ought to have been set aside. Counsel placed reliance on a Division Bench decision in Chhutbai v. Madanlal, AIR 1989 MP 330, and a Single Bench decision of this Court, in M/s. Electric Construction and Equipment Co. Ltd. v. Permali Wallace Ltd., 1991 JLJ 45. It was also contended that as the service was not valid, the application under O.9, R. 13, was filed within 30 days of the knowledge of the decree. Learned counsel also contended that even if it is assumed that the appellant appeared and the Court ordered for supply of a copy of the plaint, the date on which the ex parte decree was passed, was not the date of hearing, as the date was fixed by the Reader of the Court, and for this reason too, the Court could not have proceeded as against the appellant, and ought to have issued a notice for appearance.

        Held: As regards the first contention, I need not delve upon the same, as it is now the settled view of this Court that whenever summons is issued to a defendant, it must accompany a copy of the plaint or a concise statement. When the summons issued did not accompany a copy of the plaint, however, the summons indicated the name of the Court, the suit number and the next date of hearing, as per form prescribed for the summons, it is not enough compliance of the provisions of O. 5, R. 2, CPC. The law is that along with the summons, a copy of the plaint should be served, as it is very much essential because the purpose of service of a copy of the plaint or if no permitted, a concise statement thereof, is to bring home to the defendant the knowledge of a particular suit having been instituted against him so that the defendant may know that the claim brought about by the plaintiff against him and make up his mind against the claim. This is the reason why the law makers have made R.2 of O.5, CPC, mandatory by using the word "shall". Accordingly, if the summons is not accompanied by a copy of the plaint, it cannot be said that there is due or valid service on the defendant, and as there is no valid service on the defendant, the ex parte decree passed against the defendant should be set aside.

        Even if it is accepted for arguments make that a copy of the plaint accompanied the summons, still the Court could not have proceeded ex parte on the date fixed for appearance, as the settled view of this Court is that the Reader of a Court, when the Presiding Judge is on leave, cannot fix the date of the hearing. As 7.8.1985 was not the date fixed for hearing, the Court illegally proceeded ex parte against the defendant/appellant, and as there was sufficient cause for nonappearance of the appellant/defendant, the Court ought to have set aside the ex parte decree, as the defendant applied within 30 days from the date of knowledge of the ex parte decree.

        In the result, the appeal is allowed. The decree passed ex parte by the trial Court is set aside on payment of costs of Rs. 500/- by the appellant to the respondent. The parties shall appear before the Court of District Judge, Vidisha, on 14.3.1991, on which date the defendant shall obtain a copy of the plaint and within three weeks thereafter, shall file written statement. No fresh notices need be issued by the trial Court for appearance of the parties, as they have been noticed here. 1991 JLJ 45 and AIR 1989 MP 330 relied on. Appeal allowed.