Failing to serve a copy of the plaint with the summons constitutes illegality, invalidating any resulting decree.

1. A suit was instituted by Purbia, who is the respondent in this revision, in the Court of Senior Sub-Judge, Mandi, being suit No. 29 of 1979. The plea raised in the suit was that defendants Nos. 2 and 3, namely, Karam Dass and Barthi, both his brother and sister, had transferred their 1/3rd and 1/6th share, respectively, in land on Jan., 19, 1978 in favour of Singh, who is the applicant in this revision, for Rs. 3000/-. This sale, according to the case set up in the plaint, was void as the property was joint Hindu family co - parcenary property and there was no legal necessity and, therefore, Karam Dass could not alienate it. Also, that Barthi had no right to sell the Property.

2. The suit was decreed ex - parte as defendants No. 1, the present applicant, failed to appear in spite of service of summons upon him. The decree was passed on Oct. 27, 1979 by which it was declared that the sale aforesaid was void. A decree for possession was also granted in favour of the plaintiff.

3. An application under O.IX, R.13, C.P.C. was made by Singh for setting aside the ex parte decree, on Jan. 18, 1980. It was registered as Miscellaneous application No. 2 of 1980. The trial Judge came to the conclusion that the defendant was duly served and was, therefore, not entitled to the relief of setting aside of the ex parte decree. The finding was that the service of summons was effected upon him by affixation. In appeal, which Singh preferred against the aforesaid order, the conclusions arrived at by the trial Judge were affirmed. The appeal (C.M.A. No. 6 of 1981) was dismissed on Nov. 24, 1981 by the learned District Judge, Mandi. Thereafter, the present application in revision by Singh under S.115, C.P.C.

4. The submission which was initially made by Shri Rajeev Mehta, appearing for the applicant, was that the finding of the courts below that the applicant was duly served and had failed to contest the suit in spite of the service of summons effected on him, was erroneous. This submission can, however, not be countenanced in the present revision for the two courts below have, on appreciation of evidence on record, concurrently concluded that the applicant was served by affixation under R.17 of O.5, C.P.C.

5. Another submission which Shri Mehta made, was that in this case service of summons was not made in accordance with law, and, in the eyes of law, the applicant could not be treated to have been served even by affixation. In this context, Shri Mehta relies upon the observations made by the learned District Judge in the appellate order that a copy of the plaint had not, admittedly, been pasted along with the summons on the door of the applicant by the Process Server. This factual statement, in the order of the learned District Judge, has not been controverted by the learned counsel appearing for the plaintiff in this court.

6. O.5, C.P.C. deals with service of summons. R.2 of the Order says that "Every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement." R.10 says that "service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court."

7. It is not in dispute that summons served under R.10 must be accompanied by a copy of the plaint or else, if permitted by the Court, by a concise statement. The law is settled that if a copy of the plaint is not served on the defendant who is served under R.10, the service cannot be said to be in accordance with law.

8. R.17 of O.5, inter alia, provides for affixation of summon on the outer door or s