Chattisgarh High Court
Chitrekha vs Roop Narayan Verma And Others on 7 July, 2011
HIGH COURT OF CHATTISGARH AT BILASPUR
Writ Petition 227 No 2611 of 2009
Chitrekha
...Petitioners
Versus
Roop Narayan Verma and others
...Respondents
! Mr P P Sahu counsel for the petitioner ^ Mr Sanjay K Agrawal Advocate with Shri Raja Sharma counsel for respondent No 1 Mr Sourabh Dangi counsel for respondent No CORAM: Honble Mr N K Agarwal J Dated: 07/07/2011 : Judgement ORAL ORDER 07072011 WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUION OF INDIA With the consent of the parties, the matter is heard finally.
1. Against the ex parte decree dated 5.3.1992 passed by XIIth Civil Judge, Class II, Raipur in Civil Suit No. 69- A/1990, the respondent No. 1 preferred an application under Order 9 Rule 13 of the Code of Civil Procedure on 22.6.1992 for setting aside the ex parte decree. Prayer was opposed by the petitioner herein.
Trial Court, vide impugned order set aside the ex-parte decree. Hence this petition.
2. Shri P.P. Sahu, learned 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.
3. On the other hand, Shri Sanjay K. Agrawal, learned counsel appearing for the respondent No. 1 relying upon the provision contained in Order 5 Rule 2 of the CPC would 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 aside the ex parte 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 reveal that the summons sent to the respondent No. 1 was not accompanied with the copy of plaint. Sending of copy of plaint along with summons is a mandatory requirement under Order 5 Rule 2 of the 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 held as under :-
"5. After hearing 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 of the 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 if 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 did not accompany a copy of the plaint, no doubt the summons indicated the name of the Court, the suit No. 1 and the next date of hearing, as per form prescribed for the summons, but it is not enough compliance of the provisions of the Order 5, Rule 2, C.P.C. The law is that along with the summons, a copy of the 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 having been instituted against him so that the defendant may know what is the claim brought about by the plaintiff against him and make up the mind against the claim. This is the reason why the law makers have made Rule 2 of Order 5, C.P.C. mandatory by using the word "shall". Accordingly, if the summons is not accompanied by a copy 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. Banwarpal, 1980 Jab LJ 572; Gupta Sahitya Sadan v. Sanchatak, M. P. Pathya Pustak Nigam, (1980) 2 MPWN 157; Laxminarayan v. Rameshwar, 1989 MPRCCJ NOC 12; M. G. Dua v. Ballimal Nawalkishore, AIR 1959 Cal 87; General Punjab 467; Sureshchandra Sarkar v. Gosaidas, AIR 1976 Cal 87, General Auto Agencies, Jaipur v. Hazari Singh, AIR 1977 Rajasthan 180). The decision of this Court in Diwansingh v. Jiwandas, 1978 MPLJ Note No. 72 has no application to the facts of present case, which has been relied by Shri Chaphekar. Moreover in Civil Revision No. 108 of 1980 relating to this case, this Court, after consideration of the provisions of Order 5, Rule 2, C.P.C and Order 9, Rule 6, C.P.C. held that if the copy of the plaint or concise statement is not accompanied with the summons, it is not a due service. This order of remand was not challenged and became final. Therefore, the order was binding on the principle of res judicata at all subsequent stages of litigation. If any authority is needed. See Nainsingh v. Kunwarji, AIR 1970 SC 997; Y. L. Patil's case, AIR 1977 SC 392 and Mahanl Narayandas v. Registrar, Public Trusts, 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 of this Court, the trial Court has rightly set aside the ex parte decree and has not committed any illegality or irregularity in passing the impugned order warranting interference of this Court under Article 227 of the Constitution of India.
9. It is well settled principle of law that this Court, in exercise of its supervisory jurisdiction under Article 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 jurisdictional error is writ large on the face of the record, which is not in the present case.
10. Therefore, the petition being without substance is liable to be and is hereby dismissed.
Judge