Delhi High Court
Flight Centre Travels P. Ltd. vs Rahul Nath And Ors. on 25 May, 2012
Author: Manmohan Singh
Bench: Manmohan Singh
* HIGH COURT OF DELHI: NEW DELHI
Judgment pronounced on: 25.05.2012
+ I.A. No.9047/2011, I.A. No.9048/2011,
I.A. No.9050/2011 & I.A. No.9055/2011
in CS (OS) No.1193/2005
FLIGHT CENTRE TRAVELS P. LTD. ..... Plaintiff
Through: Ms Sneha Jain, Adv.
Versus
RAHUL NATH AND ORS. ..... Defendants
Through: Mr Rajiv Dutta, Sr. Adv. with
Ms Ritu Bhall and Ms Misha, Advs.
for D-3 and 4.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By this order, I propose to decide the four applications filed by the defendants No.3 and 4, the details of which are as under:
a. I.A. No.9047/2011 filed by the defendant No.3 under Order IX, Rule 12 read with Section 151 CPC for setting aside ex-parte judgment and decree dated 10.09.2010. b. I.A. No.9050/2011 filed by the defendant No.3 under Section 5 of the Limitation Act, 1963 read with Section 151 CPC for condonation of delay in filing the application under Order IX, Rule 13 CPC.
c. I.A. No.9048/2011 filed by the defendant No.4 under Order IX, Rule 12 read with Section 151 CPC for setting aside ex-parte judgment and decree dated 10.09.2010.
d. I.A. No.9055/2011 filed by the defendant No.4 under Section 5 of the Limitation Act, 1963 read with Section CS(OS) No.1193/2005 Page No.1 of 17 151 CPC for condonation of delay in filing the application under Order IX, Rule 13 CPC.
2. The facts of the case are that the plaintiff filed the present suit for permanent injunction, restraining the defendants from infringing the trade mark of the plaintiff, passing off and rendition of accounts etc.
3. When the matter was listed first time before Court on 30.08.2005, the summons in the suit and notice in the application were issued to the defendants. On 05.10.2005 counsel for the plaintiff as well as counsel for the defendants No.2 to 4 appeared and prayed for an adjournment on the ground that the matter may be settled and on their request, the matter was adjourned to 30.01.2006. On 30.01.2006, more time was sought by the counsel for the parties for getting the matter settled. On 11.05.2006, counsel for the defendants stated that she had no instructions with regard to settlement and the defendants were directed to file the written statement and reply. Thereafter, nobody appeared on behalf of the defendants on 19.07.2006, 18.08.2006 and 25.08.2006. Therefore, the defendants were proceeded ex-parte on 25.05.2006 and the plaintiff led the ex-parte evidence by filing the affidavit of Mr Ajay Gupta.
4. On 07.12.2007, an application, being I.A. No.14074/2007, under Order VI, Rule 17 CPC was filed by the plaintiff for amendment of the plaint, in view of the changed circumstances as the trade mark „Flight Center‟, which was being used by the plaintiff, was registered vide Registration Certificate dated 18.08.2006. The application of the plaintiff was allowed. By order dated 12.05.2008, the amended affidavit of Mr Ajay Gupta and the registration certificate were taken on record.
5. Vide ex-parte judgment dated 10.09.2010, the suit of the plaintiff was partly decreed and the defendants were restrained from CS(OS) No.1193/2005 Page No.2 of 17 using the trade mark „Flight Centre‟ and or using the mark/trading style „Flight Centre‟ or any deceptive variant in any manner whatsoever in relation to travel and tour services. So far as the rendition of accounts and the payment of damages were concerned, the plaintiff was not able to prove the same.
6. The defendants No.3 and 4 have filed the present applications under Order IX Rule 13 CPC for setting aside the ex-parte judgment and decree dated 10.09.2010 along with the applications for condonation of delay in the filing the same.
7. As far as limitation is concerned, it is stated by the defendants No.3 and 4 that in terms of Article 123 of the Limitation Act, 1963, as no summons were properly served on the applicants, the limitation would run from the date of the knowledge of the decree, which came to the knowledge of the applicants only on 18.04.2011.
8. As per the applicants, there is two days delay in filing the applications under Order IX, Rule 13 CPC. The same is condoned for the reasons explained in the application.
9. The plaintiff‟s counsel referred the second proviso to Order IX, Rule 13 CPC clearly provides that a decree may not be set aside on a mere irregularity in service of summons, if, it can otherwise be shown that the defendant had sufficient knowledge of the date of hearing and the proceedings. It is submitted that it is not open to the applicants to take the technical plea of alleged non-service of summons, when admittedly they had knowledge of the proceedings and also knowledge of the date of hearing. It is submitted that in any event lack of due diligence and care on the part of the applicants and their counsel who represented them during the pendency of the suit shall not be allowed to cause grave injustice and prejudice to the non-applicant. It is submitted that if, the applicants are granted the relief claimed by them CS(OS) No.1193/2005 Page No.3 of 17 then, it will give a free rein to the defendants to have a decree set-aside on a mere technical ground of non-service.
10. It is also contended by the plaintiff that while the defendants No.1, 2 and 4 had been served with summons by ordinary process on 14.09.2005 and by registered AD on 27.09.2005, the service report of defendant No.3 was awaited. Counsel for the defendants entered appearance on its behalf on three dates viz 05.10.2005, 30.01.2006 and 11.05.2006. On the first two occasions, the counsel for both the parties had informed the Court that parties were attempting to settle the matter. The fact that settlement talks were on, is further borne out by the e- mails exchanged between the counsels for the parties. On 11.05.2006, when no settlement was forthcoming, the counsel for the defendants sought time to file its reply to the application under Order XXXIX, Rule 1 and 2 CPC. The Court also directed the defendants to file written statement.
11. Plaintiff has also challenged the validity of additional affidavit filed on 18.04.2012 by stating that the advocates Mr N. Ganpathy, Mr Rohit Puri and Ms Natasha, who „purportedly‟ entered appearance in a „casual manner‟, on 05.10.2005, 30.01.2005 or 11.05.2006, were not authorized to do so, the applicant chose not to seek any explanation from the concerned advocates for entering appearance on its behalf before the High Court. It is alleged by the plaintiff that if, the allegations made in the pleadings and the additional affidavit are to be believed for setting aside the decree, then, it will tantamount to holding that the concerned advocates who appeared before the Court on the dates were guilty of appearing in the matter without instructions.
12. They are same the counsels representing defendant No.3 in the Share Purchase Agreements and who have filed application for CS(OS) No.1193/2005 Page No.4 of 17 registration of the defendant No.3‟s mark FLIGHT SHOP in 2007.
13. Following decisions are referred to by the plaintiff‟s counsel:
1. Sunil Poddar & Ors. Vs. Union Bank of India; AIR 2008 SC 1006.
2. Sri Nath Agrawal Vs. Sri Nath, AIR 1981 All 400.
It has been held by a Division Bench of the Supreme Court in Sunil Poddar & Ors. (supra), that if, the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff‟s claim, he cannot put forward a ground of non-service of summons for setting aside ex-parte order passed against him by invoking Order IX Rule XIII of the Code.
14. The Allahabad High Court has also held in Sri Nath Agrawal (supra) that the summons is issued by the court after institution of a suit requiring the defendant to appear before it on a particular date mentioned therein ... is based on the maxim audi alteram partem i.e., hear the other side or no one should be condemned unheard. The policy appears to be that some method should be evolved to inform the defending party about the claim made by the plaintiff and the date fixed for the appearance of the defending party. It was further held that it is significant to note that in Sub-clause (1) of Rule 1 (of Order V) the word „may‟ has been used instead of the word „shall‟. It is because it is not necessary to issue summons in all cases... A proviso now added in 1976 to Order V, Rule 1, CPC as proviso to the existing proviso also shows that when a defendant appears after the summons has already been issued, he can be directed by the Court to file his written statement on the date of his appearance. This provision also authorizes the Court to dispense with the service of the summons. The entire scheme of the CPC in this regard aims at only one thing to obtain the presence of the defendant to a claim and to provide full information about the nature of CS(OS) No.1193/2005 Page No.5 of 17 the claim made against him and also of the date when he is supposed to appear in Court to answer the claim. If the defendant party appears before the Court after the registration of the suit, and he is informed about the nature of the claim and the date fixed for reply thereto, it must be deemed that the defendant has waived the right to have a summons served on him. This can be seen from the record and also from the subsequent conduct of that party. The same legal position will arise when a party suo motu appears before the Court before actual service of summons either himself or through the counsel. In such a case, if some date is fixed for filing the written statement and for hearing of the suit, it would rather be too technical a view, to take that service of summons in the ordinary course were still to be insisted upon and to hold that further proceedings in the suit would take place only thereafter. This is neither the purpose nor the way to look at various provisions of the Civil P.C. ... It is not possible for me to countenance a situation in which the defendant though present in the Court and on all dates fixed therein, is still allowed to insist that unless proper summons be served upon him he should be deemed to be unaware of the proceeding."
It has been informed by the counsel for the plaintiff that the Allahabad High Court judgment has been approved in so far as question of knowledge is concerned by the Apex Court in Siraj Ahmad Siddique Vs. Shri Prem Nath Kapoor; (1993) 4 SCC 406, paras 14 and 15, and Advaita Nand Vs. Judge, Small Causes Court, Meerut & Others.; (1995) 3 SCC 407, paras 11 and 12.
15. It is stated by the plaintiff that applying the legal position laid down in Sri Nath Agrawal (Supra), that when a party suo motu appears before the Court before actual service of summons either himself or through the counsel... if some date is fixed for filing the written statement and for hearing of the suit it would rather be too CS(OS) No.1193/2005 Page No.6 of 17 technical a view to take that service of summons in the ordinary course were still to be insisted upon and to hold that further proceedings in the suit would take place only thereafter. This is neither the purpose nor the way to look at various provisions of the CPC, the applicants are not entitled to have the decree dated 10.09.2010 set aside on a mere technical ground that of the alleged non-service of summons.
16. It is argued by the plaintiff‟s counsel that despite the fact that the defendant No.3, had knowledge of the proceedings, he also had knowledge of the date of hearing of the suit and had entered appearance through counsels on three dates and had even exchanged e-mails, and attended meetings with the counsel for the non-applicant regarding settlement of the matter. Therefore, the applications are totally misconceived and liable to be dismissed with costs.
17. The main contention of the defendants No.3 and 4 in their applications is that the summons in the suit were not served upon them at the time of institution of the suit and no notice was issued or served on them at the time of the amendment of the suit in terms of the provision of the Code of Civil Procedure, 1908. It has been specifically mentioned by the defendant No.4 in its application that no specific service has been effected upon defendant No.4 as it was only defendant No.1 who had received the summons on behalf of the defendant No.4, the then CEO of the defendant No.4. The said defendant No.1 never informed about the summons to the Board of the defendant No.4.
18. It is an admitted position and matter of record that:
(a) There is service of summons served on defendant No.3.
Defendant No.4 has not been served personally. As per defendant No.4, defendant No.1 has received the summons on its behalf who had not informed about the same.
CS(OS) No.1193/2005 Page No.7 of 17(b) While suit was pending, the plaintiff sought an amendment, even then no fresh notice/summons were issued to the defendants including the defendants No.3 & 4 at the time of the amendment of the plaint.
(c) There is no Vakalatnama/Memo of Appearance or any letter of authority on behalf of either the defendants No.3 & 4 on record.
19. I have heard the learned counsel for the parties and the record of the case has also been examined.
20. As far as service of summons are concerned, as per record, report reads as under :
i) Defendant No.1, Rahul Nath was served on 14.09.1995 for the next date i.e. 5.10.2005.
ii) Defendant No.2 M/s. FCm Travels Solutions, JC-43 Khirki Extn., Malviya Nagar, New Delhi was also served on 14.9.2005 through defendant No.1 at the same address as of defendant No.1.
iii) Defendant No.4 M/s. Friends Globe Travels Ltd. was served on 14.09.2005 through Rahul Nath, defendant No.1.
iv) Defendant No.3, whose address is at Australia, service report was awaited.
The main contention raised by the plaintiff is that the said defendants had knowledge of the suit on account of having held a meeting with the plaintiff and plaintiff‟s counsel after the filing of the suit. Further, the plaintiff places reliance on order sheets which refers to defendants‟ being represented by some counsels during initial hearings and copies of e-mails exchanged have been filed, for which there is no dispute between the parties.
CS(OS) No.1193/2005 Page No.8 of 1721. Under Order V, Rule 2 CPC, it is a mandatory requirement of law that a copy of the summons along with the plaint and documents filed therein are served on the defendant. This proposition was stated in a recent judgment of Supreme Court of India in Nahar Enterprises vs. Hyderabad Allwyn Ltd. and Another, (2007) 9 SCC 466 as follows:
"When a summons is sent calling upon a defendant to appear in the court and file his written statement, it is obligatory on the part of the court to send a copy of the plaint and other documents appended thereto, in terms of Order 5 Rule 2 CPC.
...The learned Judge did not address itself the question as to how a defendant, in absence of a copy of the plaint and other documents, would be able to file his written statement. The court, furthermore, in our opinion, committed a manifest error insofar as it failed to take into consideration that the summons having been served upon the appellant after the date fixed for his appearance, it was obligatory on its part to fix another date for his appearance and filing written statement and direct the plaintiff to take steps for service of fresh summons. This legal position is explicit in view of the provisions of Order 9 Rule 6(1)(c) CPC....
The Court, therefore, committed an illegality in dismissing the application for setting aside the ex parte decree. It was a fit case where the court should have exercised its jurisdiction under Order 9 Rule 13 CPC."
22. It is a settled proposition of law that if, under Order IX, Rule 13 CXPC, the defendant is able to show that summons were not duly served on him, then the ex parte decree is liable to be set-aside. The question of defendant‟s knowledge or no knowledge of the suit is not relevant for the purpose of Order IX, Rule 13 CPC application seeking setting-aside of ex parte decree on the grounds of non-service of summons. In this regard, the following judgments are referred by the CS(OS) No.1193/2005 Page No.9 of 17 learned counsel appearing on behalf of defendants No.3 & 4:-
(i) Ravi Bhushan Seth vs. Meena Seth, reported in 2002 (50) BLJR 331 The High Court of Jharkhand was considering an application for setting aside of ex-parte decree on the grounds of non-
service of summons. The plaintiff in opposition claimed that the defendant had knowledge of the suit otherwise. Rejecting the contention, the High Court emphasized the importance of proper compliance with the provisions of the CPC relating to service of summons and observed that substituted service could be ordered only when there was a reason to believe that the defendant was deliberately keeping out of the way for the purposes of the summons. The application for setting aside of ex-parte decree was accordingly allowed.
(ii) Sambhunath Das vs. Sirish Ch. Mohapatra, reported in AIR 1985 Orissa 215 The High Court of Orissa, while hearing a revision petition arising out of an application seeking setting aside of ex-parte decree, observed that on record, there was no proof of proper service having been effected on the defendant, and further refused to disallow the application for setting aside of ex- parte decree on the ground that the defendant could be imputed with the knowledge of pendency of the final decree proceedings by virtue of having participated in Miscellaneious Case. Rejecting the contention, the High Court observed:
"...It must be remembered that the Civil P.C. embodies provisions conforming to the rules of natural justice and no order adverse to a party can be passed without notice CS(OS) No.1193/2005 Page No.10 of 17 to him. It cannot therefore, be held that the petitioner participated in the Misc. Case so as to impute his knowledge of the final decree proceeding. In this view of the matter the finding of the Courts below that the petitioner having participated in Misc. Case No.45 of 1976 had knowledge of the final decree proceeding cannot be sustained."
(iii) Radha Ballav Thakur vs. Dayal Chand Bose, reported in AIR 1962 Orissa 15 In this judgment, the High Court of Orissa, considered the application seeking setting aside of ex-parte decree in context of an identical proviso to O. IX, R. 13 under the State Amendment as the proviso to O. IX, R. 13 after the 1976 amendment to the CPC (i.e. to the effect that an ex- parte decree shall not be set aside merely on the ground of irregularity in service of summons, if the court is satisfied that the defendant knew of the date of hearing in sufficient time to enable him to appear and answer the plaintiff‟s claim), and held as follows:
"It is, however, clear that the provisions are to the effect that, if the defendant is able to show that the summons were not duly served on him, it is mandatory that the decree should be set aside; the question of knowledge or no knowledge is not relevant for the purpose of Order 9, Rule 13.
23. As far as the defendant No.3 is concerned, nothing is on record to show that summons have been served upon them. As per record, service report is awaited except there was appearance recorded in Court by the counsel on behalf of defendant No.3, otherwise, he had knowledge of the suit, which appears from the e-mails exchanged between the parties and orders passed by the Court for settlement, if CS(OS) No.1193/2005 Page No.11 of 17 any. But, the fact of the matter is that there is no service of summons and vakalatnama on its behalf. Additional affidavit of David Smith, Consultant and Power of Attorney Holder of the defendant No.3 has filed his affidavit. Para 4 to 8 of the affidavit reads as under :
"4. I state that to the best of my knowledge based on the record of Defendant No.3, no lawyer was authorized by Defendant No.3 to appear on behalf of the Defendant No.3 before this Court in the present proceedings. This is further evidenced from the fact that there is no Vakalatnama/Memo of Appearance or any other proof of authority to appear on behalf of the Defendant No.3 which has been filed on record of the Hon‟ble Court. Any appearance on behalf of Defendant No.3 in the records of this Hon‟ble Court, including that on 05 th October, 2005 when purportedly a lawyer is said to have represented Defendant Nos.2-4, ex facie appears to be inaccurate recorded.
5. I state that to the best of my knowledge no lawyer was authorized to appear on behalf of the Defendant No.3 on 5 th October, 2005 or at any stage prior or later during the suit proceedings. The Defendant No.3 became aware of the proceedings only after passing of the decree by way of the legal notice dated 13th April, 2011 served upon by the counsel for the plaintiff on the Defendant No.3 herein.
6. In aforesaid context, I wish to emphasize herein that the Defendant No.3 is seeking setting aside of the ex-parte decree to protect is valuable rights over is well-known, longstanding and established trade mark FLIGHT CENTRE. The Defendant No.3 is an internationally well-known travel company that has its business spread over several countries and continents.
7. The Defendant No.3 is the largest traditional high street travel agent in Australia carrying on its business since 1981, under the trade mark/name Flight Centre. The Defendant No.3 has an extensive global footprint of stores, creating an impressive distribution network for travel suppliers (airlines, hotels, car rentals, travel insurance and foreign currency requirements). The Defendant No.3 boasts of more than 2000 shops and business in 11 countries including Australia, New Zealand, USA, Canada, UK, South Africa, Hong Kong, India, China, Singapore and Dubai. In addition the company‟s CS(OS) No.1193/2005 Page No.12 of 17 corporate travel management network, FCm Travel Solutions extends to more than 40 other countries through strategic licensing agreements with independent local operators. Internationally, the company employs about 13000 consultants and support staff.
8. In connection with its reputed and well-established business and services, the Defendant No.3 adopted the trade mark/name FLIGHT CENTRE in 1981 and has been using the same since then all over the world continuously and without interruption as its flagship brand and an integral part of its trade and corporate name. As a result of longstanding and extensive use on a global scale, the Defendant No.3 has earned substantial goodwill and reputation in the trade mark/name FLIGHT CENTRE and the same is associated with its business and services worldwide. Defendant No.3 has prior proprietary rights and is the first, honest and bona fide adopter and the true owner of the trade mark/name FLIGHT CENTRE, with its use being several years prior to that claimed by the plaintiff in respect of its alleged business, and is known universally by the said mark/name. The Plaintiff to the contrary is a small player even in Indian market with an admitted turnover of only about Rs.4.51 crores as against the Total Transaction Value turnover of AUD 12.2 billion of the Defendant No.3 as recorded in the previous financial year. Contrary to the claims of the plaintiff, it is in fact the plaintiff which has usurped the trade mark/name of the Defendant No.3 and is seeking to pass off its services as part of the Defendant No.3‟s worldwide network of business of travel agents."
24. In the present case, admittedly defendant No.3 is the main defendant who is claiming the ownership rights of the trade mark in question being prior user of brand name FLIGHT CENTRE. It is mentioned by the defendant No.3 that at the time of institution of the suit, defendant No.1 was an independent corporate legal entity and an agent of the defendant No.3 and defendant No.1 who received the summons on behalf of defendant No.4 had no interest in protecting the rights and interest of defendant No.3.
25. As per averments made in the plaint, defendant No.2 is a CS(OS) No.1193/2005 Page No.13 of 17 joint venture of defendant No.3, defendant No.1is CEO of defendant No.2 and they are carrying on business in the address given at New Delhi.
26. It is also the matter of record that no fresh notice was issued to the defendants at the time of filing and allowing the amendment to the plaint. It is settled position of law that issuance of fresh notice at the time of amendment of plaint is mandatory and any amendment allowed without allowing an opportunity to the opposite party to contest the same is negation of justice and illegal.
27. This principle has been affirmed by the Supreme Court of India in a three Judge Bench decision in Ramnik Vallabhdas Madhvani and Ors. vs. Taraben Pravinlal Madhvani, reported in AIR 2004 SC 1084 in the following manner:-
"Procedural aspect demands that on the amendment being allowed, the opposite party has to be given a chance to respond to the amended pleading and if the plea is contested, the court has to give its decision thereon. Not affording an opportunity to the contesting party to contest a plea, which has been allowed to be amended, is negation of justice. In the present case the fact remains that the amendment application of the plaintiff was allowed vide order dated 16-12-1985 when on the same date the appeal against the preliminary decree was disposed of and rate of interest going even beyond what was permitted by way of amendment, was awarded. The decree which was passed was for much more than what the amendment allowed. The plaintiff had only sought leave to amend the rate of interest as originally pleaded as 6% per annum to 13% per annum. This amendment was allowed. But in the decree the Court allowed interest to be charged at the prevailing bank rate of interest charged by nationalised banks from time to time on commercial transactions during the relevant period. Thus the High Court while allowing the prayer for amendment simultaneously passed a decree not only based on the amended plea, but for exceeding it. No amended pleadings were filed. No opportunity was given to the defendants to contest the plea. A bare reading of Order 6 Rule 17 of the Code of Civil Procedure shows that amendment is of a plea CS(OS) No.1193/2005 Page No.14 of 17 contained in the pleadings and the object of allowing the amendment of pleadings is to determine the real questions in controversy between the parties. This means that the parties have to be given a chance to contest the questions in controversy and the court has to give its decision ultimately on such contested issues. This procedure was not followed in the present case. The procedure followed is wholly illegal.
28. In the following decision, it is held that even if a party is ex parte, and thereafter, if an amendment application is made, then that must be served to the party concerned and if the party remains absent despite notice, then the Court applying its discretion may pass an appropriate order. Reliance is placed on the following judgment:-
M/s. Jharkhand Mines and Industries Ltd. & Anr. vs. Nand Kishore Prasad & Ors., reported in AIR 1969 Patna 228 The High Court of Patna while dealing with the effect of passing of an ex-parte decree without service of notice at the time of the amendment of the suit, held as follows:
"It was incumbent on the Court to see to it that the notice of the amended plaint was served on the defendants of that suit. The Code of Civil Procedure, in my opinion, casts a duty on the court to see that the defendants are made aware of any amendment in the plaint, whether the amendment be in regard to the addition of parties or in regard to the contents thereof. Unfortunately, the learned Subordinate Judge, who passed the ex parte decree, did not direct any notices to be issued to the defendants with a view to make them aware about the amendment of the plaint. He should have issued such notices and awaited the service report, and, if the defendants so desired, granted them an opportunity to file a written statement before putting up the suit for hearing and disposal, whether ex parte or otherwise. On this ground alone, I am of the opinion that the ex parte decree is vitiated and must be set aside."CS(OS) No.1193/2005 Page No.15 of 17
29. Admittedly, no notice of amendment application was issued to defendants No.3 & 4, nor served upon them, nor any appropriate order was passed in this regard.
30. As already mentioned, there is no Vakalatnama, Memo of Appearance or Authority Letter on behalf of defendants No.3 & 4 on record. This is especially more so, in view of the fact that defendant No.3 has already placed on record an additional affidavit dated 18.04.2012 stating on oath that no counsel was instructed to appear on behalf of defendant No.3 in the present suit proceedings.
31. The judgment of the Supreme Court of India in Sunil Poddar & Ors. vs. Union Bank of India¸ (supra) is clearly distinguishable from the present case. The said case involved a matter in which the defendants were originally served with the summons in the suit and no notice was served on them after the suit was transferred to the Debts Recovery Tribunal. The ratio of the said judgment is not attracted in the present case, where no summons were served on defendant No.3 at all. Moreover, the extracted parts of the judgment needs to be read in its context, which relates to irregularity in service and not the case of no service of summons at all.
32. The judgment of the High Court of Allahabad in Ram Adhar vs. Rama Kirat Tiwari, reported in AIR 1981 All 405 cited by the plaintiff, has no relevance or application to the present case. The said judgment was in context of the defendants in the proceedings having entered appearance before service of summons. In such circumstances, the High Court naturally held that there was no need for service of the summons.
There is no force in the submission of the plaintiff‟s counsel that decree be not set aside if, it is a case of irregularity in the service CS(OS) No.1193/2005 Page No.16 of 17 of summons. The present case does not fall in that category. As a matter of fact, it is a case of non-service of summons. Thus, the contentions of the plaintiff‟s counsel cannot be accepted.
33. In view of the aforesaid factual and legal position, the applications for setting-aside the ex parte decree filed by defendants No.3 & 4 are liable to be allowed and the defendants No.3 & 4 be granted an opportunity to contest the suit on merits, otherwise, it will result in grave injustice to the said defendant Nos.3 and 4.
34. In view of the above, ex parte judgment and decree dated 10.09.2010 is set aside against the defendants No.3 and 4.
35. All abovementioned applications are disposed of.
CS (OS) No.1193/200536. Defendants No.3 and 4 are granted four weeks time to file written statement with an advance copy to the plaintiff who may file replication within four weeks thereafter. List on 13.08.2012.
MANMOHAN SINGH, J MAY 25, 2012/jk CS(OS) No.1193/2005 Page No.17 of 17