Jammu & Kashmir High Court
Harbans Lal And Ors. vs Charanjit Singh And Ors. on 6 March, 1992
Equivalent citations: AIR 1994 JAMMU AND KASHMIR 12
ORDER B.A. Khan, J.
1. Petitioners are seeking setting aside of ex parte decree passed against them on the ground that trial Court had committed procedural violation of provisions of Order 5, Rules 2 and 17 of C.P.C. The question that falls for determination is whether in the facts and circumstances of the case, Court below has committed an irregularity or illegality and can the decree be set aside as petitioners had not been duly served.
2. Petitioners were defendants in a suit brought against them by respondent No. 1. The suit was for restraining them from interfering in the possession and use of plot measuring 6 marlas comprising Khasra No. 422, situate at Shakti Nagar, Jammu. Summons were issued to them. In case of petitioner No. 1 it was affixed on the walls of his house and in case of petitioners 2 and 3 it was tendered to them by process-server which they refused to acknowledge.
3. Petitioners approached trial Court on November 1, 1988 praying for setting aside of the ex parte decree. Their prayer was, however, rejected vide order dated September 4, 1988. They went in appeal against the order but again failed. In a last ditch effort they have filed this revision petition calling in question orders passed by two courts below.
4. The main thrust of petitioners' case is that they were not duly served in the facts of procedural violation committed in service of summons. According to them, since summons was not accompanied by copy of plaint or a concise statement thereof and process-server had failed to affix summons on the house of defendants 2 and 3 even when they had refused to acknowledge the same, service of summons was not in accordance with mandate of law. They bring their grievance within the provisions of Order 5, Rules 2 and 17 and urge that failure to satisfy requirements of these provisions vitiates service of summons constituting basis for setting aside ex parte decree passed against them.
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 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 Rule 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 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 terras. 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.
6. This brings me to the other aspect of the matter i.e. whether failure of process-server to affix summons as envisaged by Rule 17 vitiates the service. The admitted position on factual front is that summons was tendered to defendants 2 and 3 which they refused to acknowledge and that process-server did not affix it on their house thereafter. The most question, therefore, is whether the breach committed is a mere irregularity or illegality. If it is held to be an irregularity, ex parte decree passed against petitioners shall stand and in case of illegality it will have to be set aside.
7. Order IX, Rule 13 CPC confers power on the court to set aside an ex parte decree if it is satisfied that the summons was not duly served on the defendant or that he was prevented by any sufficient cause from appearing when the suit was called for hearing. The proviso added to the provision creates a bar against setting aside of the ex parte decree on the ground of any irregularity in the service of summons. Therefore, it assumes crucial importance whether in a given case irregularity or illegality had been committed in service of summons.
8. There is a difference between irregularity and illegality. Irregularity contemplates defect in procedure and non-compliance of a prescribed formality which may not be of substantial nature. On the contrary, illegality connotes contravention of statute which can have the consequence of making action void. The distinction is based on degree than kind as held in AIR 1947 PC 67 : (1947 (48) Cri LJ 533). The test is the degree of compliance with the requirement prescribed. If there is substantial compliance of procedure prescribed, the defect, if any, would be irregularity. But if there is total non-compliance of mandatory provision of law, if would result in illegality.
9. Order V, prescribes procedure of service of summons. The purpose is to ensure that defendant receives information and knowledge of the claim against him. If he is found to have received the information and can be said to have acquired the knowledge breach of procedural requirements here and there can at best be an irregularity not vitiating service. Because where there is substantial compliance of prescribed requirements it cannot result in illegality making the action void.
10. Viewed thus, it remains to be seen on factual matrix in the present case whether non-compliance of requirements of Order V, Rule 17 is such as to render service invalid. There is no denial to the fact that defendants 2 and 3 refused to acknowledge summons when tendered to them and that process-server did not make any effort to affix summons on their house as required under Rule 17. But both the courts below have found it on fact that petitioners had the knowledge of claim against them and yet they had failed to appear before trial court without any sufficient cause. So much so that they had failed to respond even after police aid was sought for implementation of interim stay order granted by trial court as noticed by the courts below. I do not deem it necessary to repeat all those circumstances which led the courts below to conclude that petitioners had the knowledge of the suit and date of hearing. Nor do I see any reason or scope to disturb this finding of fact and to take a contrary view. If that be so, which in fact it is, petitioners cannot be allowed to reap benefit of their negligent conduct of planned design by clinging to procedural wrangles.
11. The revision petition accordingly fails and is rejected. Record be returned to concerned courts.