Madhya Pradesh High Court
Smt. Chhutbai And Anr. vs Madanlal And Anr. on 5 May, 1989
Equivalent citations: AIR1989MP330, AIR 1989 MADHYA PRADESH 330, 1989 MPRCJ 229
JUDGMENT S.K. Dubey, J.
1. This is a petition under Articles 226 and 227 of the Constitution of India.
2. The material fuels leading to this petition, briefly, are as follows : --
The petitioners and respondent 2 Natthu Prasad were the tenants of Prahladdas. Prahlad Das filed a suit for ejectment under Section 12(1)(a),(f) and (g) of the M. P. Accommodation Control Act, 1961, against the petitioner and respondent 2, in the Court of Civil Judge, Class-II, Mhow. Summonses were issued to the petitioners and respondent 2 intimating the date of first hearing as 16th of June, 1965. The summons accompanied with a copy of the plaint was served upon respondent 2 but the summonses on the petitioners were served without the copy of the plaint. On the date fixed, i.e. 16-6-1965, the petitioners did not appear. An ex parte decree was, therefore, passed on 19-6-1965. But Prahlad Das, the decree-holder, continued to realise the rent from the petitioners and respondent 2 for sufficiently long time i.e. for about 10 years without taking any action to execute the ex parte decree and for seeking eviction. For the first time, on 18-8-1975, Prahlad Das sent a vague notice stating therein that a decree for eviction has been passed against the petitioners and claimed possession of the suit premises. No particulars i.e. date of the decree and name of the Court was given in this notice. The petitioners sent a reply dated 16-6-76 and demanded the particulars of the decree, but the particulars were not given. On the other hand, the landlord decree-holder filed an execution application, notice of which was issued to the petitioners for appearing on 23-8-1976. On receipt of this notice of the Court, the petitioners inspected the file and obtained the material particulars and, thereafter filed an application on 4-9-1976 under Order 9, Rule 13, C.P.C. within 30 days of the dale of knowledge of the decree, to set aside the ex parte decree on the ground that the summonses were not duly served on the petitioners. This application was contested by the decree-holder. In between the decree-holder died and his son, respondent 1 Madanlal prosecuted the proceedings as his legal representative. The trial Court dismissed the application under Order 9, Rule 13, C.P.C. on 23-6-1978. Against the said order, an appeal, which was registered as Misc. Appeal No. 127 of 1988, was preferred before the District Judge, Indore, which was heard by the 6th Additional Judge to the Court of District Judge, Indore. This appeal was dismissed. Against that order, the respondent 1 preferred a revision petition before this Court, which was registered as Civil Revision No. 188 of 1980. That revision petition was allowed by this Court on 15-3-1982 holding that if the summonses are not accompanied by a copy of the plaint, then it is not an irregularity in the service of summonses but it was not due service in view of the provision of Order 5, Rule 2, C. P. C. and Order 9, Rule 6, C. P. C. the case was remitted to the appellate Court to decide the appeal de novo in accordance with law, after giving a categorical finding on the question as to whether a copy of the plaint was served along with the summons or not and whether the petitioner had the knowledge of the decree. If so, whether the application filed by the petitioners was barred by time or not, in view of the provisions of Article 123 of the Limitation Act, 1963 as the words 'knowledge of the decree' are important. Article 123 of the Limitation Act contemplates 'knowledge of the decree' and not 'any decree'. This order of remand was not challenged by the respondent decree-holder. The appellate Court, vide order dated 17-1-1984 (Annexure P 3), held that from the record and showing of the summons, it is evident that the summonses so served on the petitioners were not accompanied by a copy of the plaint. Hence, it cannot be said that the summonses were duly served on the petitioners. On the question of limitation, the appellate Court held that a notice Ex. P 4 was served by the landlord on the petitioners informing thereby that a decree for eviction has been passed in Civil Suit No. 35 of 1965. On this information, the petitioners could have obtained necessary information and gathered the knowledge by inspecting the Registrar of Civil Suits in the Court of the Civil Judge concerned. But having not done so, the petitioners would be deemed to have knowledge of the decree as notice of the decree is the knowledge of the decree. As such, the petition filed by the petitioners is barred by time and was dismissed accordingly. It is this order, which has been challenged in this petition under Articles 226 and 227 of the Constitution.
3. The respondent landlord, in the return, contended that in view of the second proviso to Order 9, Rule 13, C.P.C, which has been inserted by the C.RC. (Amendment) Act, 1976 (Act No. 104 of 1976), which came into operation with effect from 1-2-1977, it has been laid down that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. Respondent 1 also relied upon the State Amendment under Order 9, Rule 13, C.P.C. which is also to the same effect. Respondent 1 contended that though copy of the plaint did not accompany the summonses, yet when the defendants had the knowledge and had sufficient time to answer the plaintiffs claim, it would be merely an irregularity. In the facts and circumstances of the present case, such a decree cannot be set aside. The other contention raised in the return is that when the appellate Court has come to a finding of fact that the petitioners had the knowledge of the decree, because of the notice sent by the landlord decree-holder, such an application under Order 9, Rule 13, C.P.C. was barred by time. This being a finding of fact, cannot be interfered in a petition under Article 227 of the Constitution even if another view is possible.
4. Shri R.G. Waghmare with Shri A. R. Tiwari, learned counsel for the petitioners; Shri G. M. Chaphekar with Shri S. S. Samvatsar, learned counsel for respondent 1, were heard at length.
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).
6. Thus the contention of Shri Chaphekar, learned counsel for respondent No. 1, that the petitioners had the knowledge because of the service of the summons, which was not accompanied with a copy of the plaint and they could have appeared as the petitioners had the notice of the date of hearing and had sufficient lime to appear and answer the plaintiffs claim, cannot be accepted.
7. Now coming to the question of application being barred by lime, we are of the opinion that the appellate Court has completely misdirected itself in holding that the application was barred by lime. The expression "knowledge of the decree" used in Article 123 of the Limitation Act, 1963, means the knowledge of a particular decree, which is sought to be set aside. It has been held that when the summons was not duly served on the petitioners, the limitation under Article 123 of the Limitation Act does not start running against the petitioners because they received some vague information that some decree has been passed against them (See AIR 1967 SC 1384), Pannalal v. Amarlal). No doubt in this case, it has been held that it is a question of fact in each case whether the information communicated to the defendant is sufficient to impute to him knowledge of the decree within the meaning of Article 164 of the old Limitation Act. In the present case, the appellate Court, itself has held that in the notice Ex. P-4, it has not been mentioned that from which Court the decree was passed nor the date of the decree has been mentioned but as the case No. 1 has been mentioned, the petitioner could have gathered the knowledge by inspecting the Register of Civil Suit maintained by the Courts. Admittedly in Mhow, there is not only one Civil Judge Class II, but there are two or three Civil Judges. Therefore, this type of information cannot be said to be the knowledge of the decree. There is no finding of the Appellate Court that from the notice Ex. A-4, the petitioners got the knowledge of the de6ree, but, on the other hand, the finding is different that the petitioners could have inspected the record and could have got the knowledge by finding out the particulars of the decree. In our opinion, on such a finding of the appellate Court, the order of the appellate Court holding that the application under Order 9, Rule 13, C.P.C. was barred by time, cannot be sustained and deserves to be quashed.
8. The third contention of the respondent 1 that the findings are findings of fact and even if second view is possible, the said findings cannot be interfered in our supervisory jurisdiction. In view of the law laid down by the Apex Court in Mohd. Yunus v. Mohd. Mustaqim, AIR 1984 SC 38, Venkatlal v. Bright Brothers (P) Ltd., AIR 1987 SC 1939; and Khalil Ahmad v. Tufal Hussain, AIR 1988 SC 184, this contention has also no force as we have not interfered with the findings of fact but we have come to the conclusion that the appellate Court, while arriving at a finding that the application was barred by time, has transgressed its limit. The conclusion of the learned District Judge cannot be sustained in view of the finding that the petitioners could have gathered knowledge by inspecting the records of the Civil cases. Therefore, the notice issued by the landlord, which gives only information that some decree has been passed and that when the particulars were demanded by the petitioners, they were not supplied by the respondent landlord, itself is sufficient to show that there was no "knowledge of the decree" and not "any decree." Besides, the conduct of the respondent landlord is also such that after the passing of decree of eviction, the landlord continued to realise the rent for a period of about 10 years and thereafter, served a notice and filed an application for execution _of the decree. This itself suggests that the landlord wanted that the petitioners may not come to know about the ex pane decree passed against them. This circumstance itself is sufficient to show that the landlord wanted that for want of 'knowledge of the decree', the petitioners may not take any action in time. The powers of this Court under Article 227 of the Constitution are not so rigid that this Court though satisfied that a grave injustice has been caused to the petitioners, an ex parte decree has been passed against them without any due service and they were prevented from taking any timely action because they had no knowledge of the decree, yet this Court would not refuse to exercise powers under Article 227 of the Constitution (See State of U. P. v. District Judge, Unnao, AIR 1984 SC 1401).
9. In the result, this petition is allowed. The order of the Appellate Court is quashed. The Appellate Court is directed to dispose of the application under Order 9, Rule 13, C.P.C within one month of the date of the appearance of the parties. No fresh notices shall be issued to the parties. Parties shall appear before the Appellate Court on 19-6-1989. Looking to the delay, which has been cause in the case, in case the Appellate Court sets aside the decree, the Appellate Court shall fix a date within one month of the appearance of the parties, to file written statement and the trial Court shall thereafter proceed with the case do die in dien till the trial is concluded. In the circumstances of the case, parties to bear their own costs of this petition. The amount of security deposit, if any, be refunded to the petitioners, after verification.