&m IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.} WRIT PETITION f227) N0. ^6(1 QF 2009 -.J PETITIONEF ^^^.^ ^ ESPONDENTS p^^^J^yv^ ^ ^^^... f^A^l,^,,^ 111 ....K%,5Xi SrT^"^ ^? V ^ ,/ .^s^ ^" -J8> ^V' ^6<./ ^/i/'/ ^n'y /' ^Sy' -y ^ Chitrekha, D/o Nilkanth, aged about 42 years, R/o Boriyakala, Dumar Tarai Raipur, District Raipur (C.G.) VERSUS 1,. Roop Narayan Verma, S/o Ghanshyam Verma, aged about 30 years, R/o Clubpara, Mahasamund, District Mahasamund (C.G.) ^: Laxmi Bai, D/o Radheshyam Chandrkar, aged about 30 years, C/o Arun Kumar Chandrakar, R/o Village Malideeh, Post Office Tumgaron, Tahsil and District Mahasamund (C.G.) 3. Laxmi Bai, D/o Mannuram Chandrakar, aged about 25 years, R/o Malideeh, Present Residing in Raytum, Tahsil and District Mahasamund (C.G.) (That this respondent is party to the original suit but the respondent no. 1 had not made her party in a proceeding under Order 9 Rule 13 and looking 'to the facts and circumstances -she is one of the necessary party). /" JS- WRITPETITION UNDER ARTIGLE J27 OF THE CONSTITUTION OF INDIA "v^ ^&^^ HIGH COURT OF CHHATTISGARH AT BILASPUR / $6 Writ Petition (2271 No. 2811 of2009 PETmONER RESPONDENTS Chttrekha Versus Roop Narayan Verma and others. ^m^lNSWI, WRIT PETITION UNDER ART1CLE 227 OF THE CONSTITUtON OF INDIA (SB: Hon'bleMr.N.K.Aaarwal.J.) PjLesent : Mr. P.P. Sahu, counsel forthe petitioner. Mr. Sanjay K. Agrawal, Advocate with Shri Raja ShaFma, counsel for respondent No. 1 . Mr.Sourabh Dangi, counsel forrespondent No. 2. None for respondent No. 3, though served. ORAL ORDER (07.07.2011) With the consent of the parties, the matter is heard finally. 1. Against the ex parte decree dated 5.3.1992 passed by Xllth Civil Judge, Class II, Raipur in Civjl Suit No. 69-A/1990, the respondent No. 1 preferred an application under Order9 Rute 13 of the Code of Civil Procedure on 22.6.1992 for setting aside the ex pa/fe decree. Prayer was opposed by the petitioner herein. Trial Court, vide impugned orderset aside the ex-parte decree. Hence this petition. 2. Shri P.P. Sahu, teamed counsel appearing for the petitioner would submit: the order impugned has been passed by the trial Court without assigning any reason therefor; the process server examined by the petitioner in the case has specifically stated that the summons were refused by the respondent No. 1 and, therefore, the ground taken in the application that the summons were not duly served upon him is false on the face of record and accordingly the trial court has exceeded in exercising its jurisdiction in setting aside the ex parte decree. /^^^ 1[ 1 ^^••^. ^ J •.^•' l-1---- :_J: h" vwi 3. On the other hand, Shri Sanjay K. Agrawal, learned counsel appearing for the respondent No. 1 relying upon the provlsion contained in Order 5 Rule 2 of the CPC woutd submit: summons alleged to be sent to respondent No. 1 was not accompanied with the copy of plaint which is mandatory requirement. In the absence of above, the alleged service of summons was bad and the trial Court has not committed any jurisdictional error in setting asidethe exparte decree. 4, I have heard counsel for the parties and perused the material available on record including order impugned. 5. A bare perusal of the statement of Mila Ram Dhruv - process server examined by the petitioner in the case would reveat that the summons sent to the respondent No. 1 was not acGompanied with the copy of plaint. Sending of copy of plaint along with summons is a mandatory requirement under Order 5 Rule 2 ofthe CPC. 6. High Court of Madhya Pradesh in the case of Smt. Chhutbai and another V. Madanlal and another reported in AIR 1989 Madhya Pradesh 330 has heid as under :- "5. After hearlng the counsel, we are of the opinion that this petition deserves to be allowed and the order of the appellate Court deserves to be quashed. The contention of Shri Chaphekar that non-accompanying of a copy of the plaint is merely an irregularity in the facts ofthe present case, cannot be accepted, because the language of Order 5, Rule 2, C.P.C. is mandatory, which reads as under: - "Every summons shall be accompanied by copy of the plaint, or jf so permitted, by a concise statement." Therefore, whenever summons is issued to a defendant, it must accompany a copy of the plaint or a concise statement. It has been held by the various single Bench decisions of this Court and other High Courts that when the summons issued dict not accompany a copy of the plajnt, no doubt the summons indicated the name of the Court, the sutt No. 1 and the next date of hearing, as per form prescribed for the summons, but it is not enough compliance of the provjsions of the Order 5, Ruie 2, C.P.C. The law is that along with the summons, a copy ofthe ,,^r^:^-. y,>-JS% '% '^U.^.^^i., 'c^ plaint should be served as it is very much essential because the purpose of service of a copy of the plaint or if so permitted, of a concise statement thereof, is to bring home to the defendant the knowledge of a particular suit havlng been instttuted against him so that the defendant may know whatis the daim brought about by the plaintiff against himand make up the mind against the ciaim. This is the reason why the law makers have made Rule 2 of Order 5, C.P.C. mandatory by using the word "shall". Accordjngly, if the summons is not accompanjed by a eopy of the plaint, it cannot be said that there is due or valid service on the defendant and that there is no valid service on the defendant, the ex parte decree passed against such a defendant should be set aside (See Bhagirath v. Banwarpat, 1980 Jab U 572; Gupta Sahitya Sadan v. Sanchatak, M. P. Pathya Pustak Nigam, (1980) 2 MPWN 157; Laxmtoarayan y, Rameshwar. 1989 MPRCCJ NOC 12; M. G. Dua v. Ballimai Nawalkishore, AIR 1959 Cal 87; General Punjab 467; Sureshchandra Sarkar v. Gosaidas, AtR 1976 Cal 87, Generai Auto Agencies, Jaipur v. Hazari Singh, AIR 1977 Rajasthan 180). The decision of this Court in Diwanstngh v. JNandas, 1978 MPU Note No. 72 has no appMcation to the facts of present case, whteh has been relied by Shri Chaphekar. Moreover in Civil Revision No. 108 of 1980 relating tothls case, this Court, after consjderationof the provisions of Order 5, Rute 2, C.P.C and OrderQ, Rule 6. C.P.C. held that ifthe copy ofthe plaint or concise statement is not accompanled with the summons, it is not a due service. This order of remand was not challenged and became final. Therefore, the order was bindinQ on the principle of res judicata aA a\\ subsequent stages of litigation. Ifany authorityis needed. See Nainsingh v. Kunwarji, AIR 1970 SC 997; Y. L. PatJI's case, AIR 1977 SC 392 and Mahanl Naravandas v. Reaistrar. Public Truste. Bilaspur. 1979 MPU 227 : (AIR 1979 Madh Pra 99)." 7. I am in respectful agreement with the above proposition of law laid down by the High Court of Madhya Pradesh in case referred hereinabove. 8. As the summons was not sent to respondent No. 1 In accordance with the provisions contained in Order 5 Rule 2 of the CPC, in the considered opinion ofthis Court, the trial Court has rightly set aside the ex parte decree and has not commjtted any inegalityor 4 ;<^ irregularity in passing the impugned order warranting interference of this Court under Arttele 227 ofthe Constitution of India. 9. It is well settled principle of law that this Court, in exercise of its supervisory jurisdiction under Articte 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below except in such cases where perversity, illegality or JurisdJGtional error is writ large on the face of the record, whteh is not in the present case. 10. Therefore, the petition being without substance Is liable to be and is hereby dismissed. Sd/- N.K. Agarwal Judge