Failure to serve a copy of the plaint with the summons results in non-compliance with mandatory legal requirements, invalidating the service.

JUDGMENT

1) The appellants, through the medium of present appeal, have challenged order dated 25.03.2024, passed by the learned Principal District Judge, Anantnag, whereby their application filed by under Order IX Rule 13 of the Code of Civil Procedure for setting aside of exparte judgment and decree dated 22.06.2022 passed by the same Court, has been dismissed.

2) It appears that respondent No.1 (hereinafter referred to as “the plaintiff”) had filed a suit for mandatory injunction seeking eviction of the predecessor-in-interest of the appellants and proforma respondent No.2, namely, Mohammad Yousuf Shah (hereinafter referred to as “the defendant) from two shops situated at General Bus Stand, Anantnag. After summons were issued to the defendant, the same were stated to have been served upon him on 30.07.2021. On 20.08.2021, the learned trial court recorded that the summons have been duly served upon the defendant and the case was adjourned to 18.10.2021 for awaiting his appearance. On 18.10.2021, when the defendant did not appear, the learned trial court proceeded exparte against him and the plaintiff was directed to lead evidence in exparte.

3) It appears that during pendency of the suit, the original defendant died on 23.10.2021 and on 05.11.2021, an application came to be filed by the plaintiff for bringing on record legal heirs of the deceased defendant. On 01.12.2021, the proposed legal representatives of the deceased defendant (the appellants herein) were proceeded exparte and the plaintiff was directed to produce evidence by way of affidavits. However, on 28.01.2022, the learned trial court realized that the service of proposed legal heirs of the deceased defendant had not been effected, as such, order dated 01.12.2021 was recalled and the Registry was directed to issue fresh summons to the legal heirs of the deceased defendant (appellants herein).

4) The minutes of the proceedings reveal that on 02.03.2022, the learned trial recorded that summons issued to legal heirs of the deceased defendant could not be served as they had gone out of station, as such, a direction for service of summons upon the legal heirs of the deceased defendant by a substituted mode i.e. by affixation was issued and the matter was posted to 25.04.2022. On the said date, the learned trial court recorded that nobody has appeared on behalf of the legal representatives of the deceased defendant, as such, they were proceeded exparte. Thereafter on 02.06.2022, an order came to be recorded by the learned trial court that the legal representatives, whose names were mentioned in the application, are brought on record as defendants and thereafter the arguments came to be heard by the learned trial court.

5) On 22.06.2022, the learned trial court proceeded to pass an exparte judgment and decree in favour of the plaintiff and the defendants/legal representatives of the deceased defendant were directed to hand over the vacant possession of the suit shops to the plaintiff. They were further directed to pay the outstanding licence fee along with interest to the plaintiff.

6) The aforesaid exparte judgment and decree came to be challenged by the appellants and proforma respondent No.2 by filing an application under Order IX Rule 13 of CPC before the learned trial court. In the said application, it was pleaded by the appellants that their predecessor-in- interest, the original defendant, had fallen seriously ill a few years back and they had to proceed outside the Valley in connection with his treatment. It was further pleaded that after their return to the Valley, when appellant No.1 and proforma respondent No.2 started operating their business from the suit shops, they came to know that the plaintiff has filed