Case: Auto Cars Vs. Trimurti Cargo Movers Pvt. Ltd. &amp; Others

defendant with the copy of the plaint filed against him; and Third, to inform the defendant about actual day, date, year, time and the particular Court so that he is able to appear in the Court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer. 28. Now coming to the facts of the case, we find that the summons dated 17.11.2014, which was sought to be served on the defendants by publication published on 25.11.2014 in the Times of India and Dainik Bhaskar did not comply with the requirement of Section 27 read with Appendix-B (process) No.I and IA. 29. In other words, the summons dated 17.11.2004 published in the papers (Times of India and Dainik Bhaskar) had material infirmity therein, which rendered the summons so also the service made on the defendants bad in law. 30. The material infirmity in the summons was that it did not mention any specific day, date, year and time for the defendants appearance in the Court. This being the requirement of Section 27 read with Order V Rule 20(3) and Process-IA of Appendix-B, it was mandatory for the Court to mention the specific working day, date, year and time in the columns meant for such filling. It would have enabled the defendants to appear before the Court on the date so fixed therein. It is a settled rule of interpretation that when the legislature provides a particular thing to be done in a particular manner then such thing has to be done in the same prescribed manner and in no other manner. 31. What was, however, mentioned in the summons in question was that the defendants should appear before the Registrar of the Court within 15 days from the service of publication of this summons on them exclusive of the day of such service of the summons and are summoned to appear before this Court in person or through advocate to answer the plaintiffs claim on the day the case is set down for hearing upon which date you(defendants) must be prepared to produce all your witness and all your documents in your possession or power upon which you intend to rely in support of your case. The summons then also mentioned that you (defendants) are hereby required to take notice that in default of your causing an appearance to be so entered, the suit will be liable to be heard and determined in your absence. 32. The aforesaid wording in the summons insofar as it pertains to giving 15 days time without mentioning a specific day, date, year and time is not in conformity with the requirements of Section 27 read with Appendix B. 33. In the light of the foregoing discussions, service of summons on the defendants without mentioning therein a specific day, date, year and time cannot be held as "summons duly served" on the defendants within the meaning of Order IX Rule 13 of the Code. In other words, such summons and the service effected pursuant thereto cannot be held to be in conformity with Section 27 read with the statutory format prescribed in Appendix B Process (I and IA) and Order 5 Rule 20(3) of the Code. 34. It is for this reason, we are of the considered opinion that the appellant (defendant No.1) was able to make out a ground contemplated under Order IX Rule 13 of the Code for setting aside the ex parte decree. 35. Once the appellant (defendant No.1) is able to show that "summons were not duly served on him" as prescribed under Section 27 read with Appendix B Process IA and Order V Rule 20(3) of the Code then it is one of the grounds for setting aside the ex parte decree under Order IX Rule 13 of the Code. In our view, the appellant (defendant No.1) is able to make out the ground. 36. In view of the foregoing discussion, we need not consider any other ground though raised by the appellant (defendant No.1) in support of their case because the aforesaid ground which we have dealt with though not raised by the appellant in the Courts below but being a pure question of law and going to the root of the matter affecting the very jurisdiction of the Court could be allowed to be raised in this Court for doing substantial justice. 37. Before parting, we consider it apposite to remind ourselves with the apt observations of a learned Judge - Vivian Bose, J., which His Lordship made while dealing with the scope of Order IX in a leading case of Sangram Singh vs. Election Tribunal (AIR 1955 SC 425 ). 38. The learned Judge speaking for the Bench in his distinctive style of writing reminded the Courts to keep the following observations in mind while deciding the rights of the parties which reads as under: "A code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned judgment allow the application filed by the defendants under Order IX Rule 13 of the Code and, in consequence, set aside the ex parte decree 09.02.2015 passed in Civil Suit No. 15/2014 and restore the suit on its file for being tried on merits in accordance with law.In our considered view, the issue involved in the appeal is required to be examined keeping in view Section 27,appended to the Code read with Order V Rule 20(3) and Order IX Rule 13 of the Code.Order V Rule 20(3) provides that when the service is effected by way of publication by the orders of the Court, the Court has to fix "time" for the appearance of the defendant, as the case may require. In our opinion, this does not dispense with the requirement of mentioning the actual day, date, year and time for defendants appearance in the Court because it is prescribed in format.The expression "time" has to be read harmoniously and in juxtaposition with the requirement prescribed under Section 27 read with statutory format Process IA ofappended to the Code.Indeed, mentioning of the specific "day, date, year and time" in the summons is a statutory requirement prescribed in law (Code) and, therefore, it cannot be said to be an empty formality. It is essentially meant and for the benefit of the defendant because it enables the defendant to know the exact date, time and the place to appear in the particular Court in answer to the suit filed by the plaintiff against him.Now coming to the facts of the case, we find that the summons dated 17.11.2014, which was sought to be served on the defendants by publication published on 25.11.2014 in the Times of India and Dainik Bhaskar did not comply with the requirement of Section 27 read with(process) No.I and IA.In other words, the summons dated 17.11.2004 published in the papers (Times of India and Dainik Bhaskar) had material infirmity therein, which rendered the summons so also the service made on the defendants bad in law.The material infirmity in the summons was that it did not mention any specific day, date, year and time for the defendants appearance in the Court. This being the requirement of Section 27 read with Order V Rule 20(3) andB, it was mandatory for the Court to mention the specific working day, date, year and time in the columns meant for such filling. It would have enabled the defendants to appear before the Court on the date so fixed therein. It is a settled rule of interpretation that when the legislature provides a particular thing to be done in a particular manner then such thing has to be done in the same prescribed manner and in no other manner.What was, however, mentioned in the summons in question was that the defendants should appear before the Registrar of the Court within 15 days from the service of publication of this summons on them exclusive of the day of such service of the summons and are summoned to appear before this Court in person or through advocate to answer the plaintiffs claim on the day the case is set down for hearing upon which date you(defendants) must be prepared to produce all your witness and all your documents in your possession or power upon which you intend to rely in support of your case. The summons then also mentioned that you (defendants) are hereby required to take notice that in default of your causing an appearance to be so entered, the suit will be liable to be heard and determined in your absence.The aforesaid wording in the summons insofar as it pertains to giving 15 days time without mentioning a specific day, date, year and time is not in conformity with the requirements of Section 27 read with Appendix B.In the light of the foregoing discussions, service of summons on the defendants without mentioning therein a specific day, date, year and time cannot be held as "summons duly served" on the defendants within the meaning of Order IX Rule 13 of the Code. In other words, such summons and the service effected pursuant thereto cannot be held to be in conformity with Section 27 read with the statutory format prescribed in Appendix B Process (I and IA) and Order 5 Rule 20(3) of the. The object behind sending the summons is essentially threefoldFirst, it is to apprise the defendant about the filing of a case by the plaintiff against him; Second, to serve the defendant with the copy of the plaint filed against him; and Third, to inform the defendant about actual day, date, year, time and the particular Court so that he is able to appear in the Court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer.