IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No. 192 of 2008. Reserved on: 01.04.2011. Decided on : 20.04.2011. _____________________________________________________ Jagdev Singh. …Appellant. -Versus- Pheenu Ram alias Ashwani Kumar and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant. : Mr. N.K. Thakur, Advocate. For the respondents. : Nemo. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Civil Revision Petition is directed against the judgment dated 31.10.2008, passed by the learned Additional District Judge, Fast Track Court, Una in Civil Appeal No. 13 of 2007. 2. Material facts necessary for adjudication of this petition are that the petitioner-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake), has instituted a Civil Suit bearing No. 37 of 1993, for specific performance of contract against the respondents-defendants (hereinafter referred to as ‘the defendants’ for brevity sake). According to the plaintiff, the defendant No. 1, namely, Shri Pheenu Ram alias Ashwani Kumar has entered into an agreement for the sale of land measuring 0- 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - 15-36 hectares, vide agreement dated 08.05.1992 for a consideration of `20,000/-. The said amount was paid to him and defendant No. 1 executed a receipt in token of `20,000/-. The sale deed was agreed to be executed on or before 30.06.1992, but defendant No. 1 did not honour the agreement. He transferred the land to defendant No. 2 by way of release deed. The defendants are brother and sister. Defendant No. 1 did not execute the sale deed and in these circumstances, the suit for specific performance of contract was filed by the plaintiff. Defendant No. 1 was issued notices number of times and ultimately, he was served by the Process-server with the notice of the suit on 03.03.1996 for 29.04.1996. According to the plaintiff, the Process-server served the notice of the suit upon defendant No. 1. He obtained the signatures and thumb impression of defendant No. 1. Defendant No. 1 did not appear pursuant to service of summons and was proceeded ex-parte by the learned Sub-Judge-I, Una on 29.04.1996. Learned trial Court passed the ex-parte decree on 13.09.1999. The defendant No.1 moved an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure before the learned Civil Judge (Senior Division), Court No. 1, Una, for setting aside the ex-parte order dated 29.04.1996 and ex-parte decree dated 13.09.1999 on 16.09.2000, which was assigned C.M.A. No. 260 of 2000. Plaintiff filed reply to the same. According to the averments contained in the application, preferred under Order 9 Rule 13 of the Code of Civil Procedure, the applicant Pheenu Ram @ Ashwani Kumar was not served with summons and, in fact, he was missing from 1992 to 1998. He has neither signed nor put thumb impression on the summons. He - 3 - came to know about the judgment and decree dated 13.09.1999, when he received the summons in Execution Petition on 25.08.2000. According to the averments contained in the reply, the summons were issued by the Court and were duly received by the applicant under his signatures and thumb impression in the presence of process-server. However, he did not appear and was proceeded ex-parte on 29.04.1996. Trial Court dismissed the application on 27.10.2006. Defendant No. 1 preferred an appeal before the learned Additional District Judge, Fast Track Court, Una. The same was allowed on 31.10.2008. Hence, this Civil Revision Petition against the judgment dated 31.10.2008. The notices were issued to the respondents on 19.11.2008. The service was complete, however, neither the respondents have appeared in person nor were represented by any counsel. 3. Mr. Naresh Thakur, learned counsel for the petitioner has strenuously argued that the judgment dated 31.10.2008, passed by the learned Additional District Judge, Fast Track Court, Una is contrary to law. According to him, defendant No. 1 Shri Pheenu Ram alias Ashwani Kumar was duly served and has put his signatures and thumb impression on the summons. He further contended that the defendant No. 1 was aware of the proceedings pending before the trial Court since he was also appearing in criminal cases Ex. R-1 to Ex. R-3 between 1993 to 1998 before the learned Chief Judicial Magistrate Una. 4. I have heard Mr. N.K. Thakur, learned counsel for the petitioner and gone through the record carefully. 5. According to defendant No. 1, he has not received the summons for appearance on 29.04.1996. A bare perusal of copy of - 4 - summons Ex. AW-1/A establishes that defendant No. 1 has put his signatures as well as thumb impression on the same. The necessity of obtaining thumb impression upon the summons was that at times, the defendant No. 1 claims himself as Pheenu Ram and at times as Ashwani Kumar. AW-1 Process-server has deposed that he has served summons upon defendant, namely Pheenu Ram and he has also identified the defendant No. 1 in the Court. His version also reveals that Pheenu Ram has told his name as Ashwani Kumar and had written in mark ‘A’ and ‘B’ on the back leaf of summons himself. The statement of Shri Sudershan Kumar witness examined by the respondents also establishes that summons Ex. AW-1/A were served upon defendant No. 1 in his presence and he has put his signature over red circle Ex.-Y. The plea raised by the defendant No. 1 that he was missing from 1993 to 1998, cannot be accepted, since he had been appearing in criminal cases before the learned Chief Judicial Magistrate, as is evident from Ex. R-1 to R-3. Thus, it is conclusively proved that the defendant No. 1 knew about the proceedings pending before the learned trial Court, but has not taken any steps to participate in the same. The trial Court has come to the conclusion that defendant No. 1 was duly served. However, according to the 1st Appellate Court, since the summons was not accompanied with the plaint, there was non-compliance of Order 5 Rule 2 of the Code of Civil Procedure. It was not the case set-up by the defendant No. 1 in the application. The 1st Appellate Court has set-up a new case for defendant No. 1. The 1st Appellate Court has failed to take into consideration the second proviso of Order 9 Rule 13 of the Code of Civil Procedure. The second proviso - 5 - has been inserted in the Code of Civil Procedure (Amendment Act), 1977. According to which, the Court shall not set aside an ex parte decree merely on the ground of irregularity in service of summons in a case where the defendant had adequate notice of the date of hearing of the suit and had sufficient time to appear and answer the plaintiff’s claim. It is, no doubt, true that the provisions of Order 5 Rule 2 of the Code of Civil Procedure are mandatory, but an ex parte decree cannot be termed as invalid, if the defendant is not served with the summons alongwith copy of plaint, if he was aware of the hearing of the suit and sufficient time to appear. In the instant case, the defendant No. 1 has been duly served with the summons and he was aware of the hearing of the suit and had sufficient time to appear. He was served for 29.04.1996. However, he did not appear and was proceeded ex parte on 29.04.1996. The ex parte decree was passed only on 13.09.1999. He had been attending criminal cases pending against him, as is evident from Ex. R-1 to Ex. R-3 during 1993 to 1998. Defendants No. 1 and 2 are brother and sister. It cannot be presumed that the brother did not know about the proceedings pending against him, in which his sister was also a party. Moreover, the objection ought to have been taken by the defendant No. 1 at the earliest opportunity. The defendant No. 1, even though has not been served with the plaint alongwith the summons, could always move an appropriate application for supply of the same. Rather, surprisingly, the plea of defendant No. 1 in this case is that he had not received the summons at all, which plea is contrary to the record. - 6 - 6. The learned Single Judge in Risaldar Pakhar Singh (deceased by L.Rs.) and others Versus Bhajan Singh (deceased by L.Rs.) and others, AIR 1987 Punjab and Haryana 170 has held that where an application for setting aside ex parte decree was filed on the ground that service of summons on defendant was without the copy of plaint therewith, it being mere irregularity, the application for setting aside the ex parte decree could not be allowed in view of prohibition under Order 9 Rule 13 second proviso (as added in 1976). The learned Single Judge has held as under: “6. I have duly considered the arguments of the learned counsel. Order 5 Rule 2 of the Code provides that every summons shall be accompanied by a copy of the plaint or if so permitted by a concise statement. O. 9, R. 13 relates to setting aside of ex parte decree against the defendant. It reads as follows: “13. In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided…………………. Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had - 7 - notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. Explanation……………..” The second proviso was added to the Rule in 1976. The object and reasons of adding the proviso were as follows: “Rule 13 deals with setting aside of ex parte decree against defendants. A new proviso is being added to the rule to ensure that the Court should not set aside an ex parte decree mereion on the ground of irregularity in the service of the summons in a case where the defendant had adequate notice of the date of hearing of the suit.” It is evident from a bare reading of the Rule that an ex parte decree can be set aside on two grounds; firstly, if the Court finds that the summons was not duly served on the defendant and secondly, if the defendant was prevented by a sufficient cause from appearing in the Court on the date of hearing. The second proviso is a rider to the rule. It provides that if the defendant comes to know about the date of hearing of the suit and there is sufficient time at his disposal to appear there and file reply in the case. The purpose of introducing the proviso appears to be that the defendant may not be able to prolong the litigation and thus defeat the ends of justice. It is true that O. 5, R. 2 provides that the copy of the plaint should accompany the summons and the Courts before the introduction of the proviso have held, that if a copy of the plaint is not attached with the summons, it is an illegality in the service. However, after introduction of the proviso, that interpretation does not hold good. It is a settled principle of law that if there is some conflict in different provisions of an Act, they should be construed harmoniously. It is also a settled principle of law that the provisions of an amending Act should be given effect to and they should be - 8 - construed in such a way that the object of the amendment is not frustrated. As already mentioned the proviso says that the service of the defendant is to be treated as proper if he comes to know about the date of suit sufficiently prior to the date of hearing. Therefore, the test for determining as to whether the service is proper or not is, firstly, whether the defendant had come to know about the date of hearing of the suit and secondly, whether he had enough time to appear in the Court. In case these tests are satisfied, the service is proper even if there is non-compliance of some provision of the Code. Consequently, I am of the opinion that if a summons is served on the defendant without a copy of the plaint, it is an irregularity, which is cured by the 2nd proviso. 8. Now I advert to the cases referred to by Mr. Majithia. It is true that in M.G. Dua’s (AIR 1959 Punj 467), Jagan Nath’s (1974-76 Pun LR 339), and M/s. Parma Nand Bhalothia & Son’s cases, (1976-78 Pun LR 485) (Supra), it was observed that a summons cannot be regarded as duly served unless it is accompanied by a copy of the plaint. However, those observations were made when the proviso was not added to O.9, R. 13.The learned Judges had no occasion to consider the effect of the newly added proviso. After the introduction of the proviso, the service of summons without a copy of the plaint ceases to be a sufficient ground for setting aside an ex parte decree as already discussed if the defendant has the knowledge of the date of hearing and he had sufficient time to appear and defend the proceedings. The addition of the proviso has made all the difference. In Jagat Ram’s case (AIR 1965 Punj 175) (supra), the question was as to which date should be considered as 1st date of hearing under the provisions of the East Punjab Urban Rent Restriction Act. In my - 9 - view the ratio in these cases is of no assistance. In Kesar Singh’s case (1071-73 Pun LR 198) (supra) the defendant refused to accept service and the summons was affixed on his outer door without copy of the plaint. It was held by the learned Judge that in view of O. 5, R. 17 a copy of the plaint should have been affixed at the outer door of his house and, therefore, the same was illegal. The learned Judge also relied on Jagat Ram’s case (supra) which I have already dealt with. 9. I am of the view that the ratio in the above case no longer holds good. The facts of Karnail Singh’s case (1985-2 Rent LR 539) (supra) are the same as those of Kesar Singh’s case (1971-73 Pun LR 198) (supra). For similar reasons I do not find that this case is helpful to Mr. Majithia.” 7. Similarly, in Harbans Lal and others Versus Charanjit Singh and others, AIR 1994 Jammu and Kashmir 12, the Learned Single Judge has held that the defendant, who has refused to acknowledge summons, cannot invoke aid of Order 5 Rule 2 of the Code of Civil Procedure. The learned Single Judge has held as under: “5. Relevant provisions require to be extracted to examine the contention, which read as under:- “Order 5, Rule 2: Copy or statement annexed to summons.-Every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement.” “Order 5, Rule 17: Procedure when defendant refuses to accept service, or cannot be found.-Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after - 10 - using all due and reasonable diligence, cannot find the defendant (the words who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time) and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed there on or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person ( if any) by whom the house was identified and in whose presence the copy was affixed.” It is true that Order 5 Rule 2 requires summons to be accompanied by a copy of plaint or a concise statement of facts to enable the defendant to know the nature of suit against him. Non-compliance of this provision can have varying consequences depending upon the facts of a case. It may prove fatal in a case where defendant acknowledges the summons and pleads prejudice caused in the absence of copy of plaint. But it may not have the same consequence where defendant refuses to acknowledge the summons and R. 17 comes into play. In the former case it does prejudice a defendant who is eager to resist the claim, but is handicapped in deciding whether to defend or not for want of copy of plaint. But the same cannot hold true in the other case. Where a defendant has refused to acknowledge summons, how can he be heard to say that he was prejudiced because it was not accompanied by a copy - 11 - of plaint. Because even if copy of plaint was there, he would have no use for it. Therefore, it can’t be said that he was prejudiced in deciding whether to defend or not in the absence of copy of plaint. To me the stand taken appears a contradiction in terms. I am, therefore, convinced that a defendant cannot invoke aid of order V Rule 2 after he has refused to acknowledge summons. In the present case petitioners 2 and 3 had admittedly refused to acknowledge summons, therefore, they cannot question validity of summons on the ground of non- compliance of requirements of order V, Rule 2. 8. In view of the observations and discussions made hereinabove, the Civil Revision is allowed. The judgment dated 31.10.2008, passed by the learned Additional District Judge, Fast Track Court, Una, District Una, H.P. in Civil Appeal No. 13/2007 is set aside and the order dated 27.10.2006, passed by the learned Civil Judge (Senior Division)-I, Una in C.M.A. No. 260 of 2000 is up-held and restored. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma) Judge April 20, 2011. (bhupender) - 12 -