See, Chhutbai v. Madanlal (AIR 1989 MP 280), Laxminarayan S. Sharma v. Ramesh-war R. Khandaewal (AIR 1990 MP 155); Electric Construction and Equipment Co. Ltd. (M/s.)
10. The law is settled that as far as possible the personal service is to
be affected, but, the defendant who is served by publication, appears and makes
a prayer to supply a copy of the plaint to contest the suit, the Court is bound
to order to supply the copy of the plaint so as to enable the defendant to
know, the concise statement thereof and the particular claim brought by the
plaintiff against him, and make up the mind against the claim, that is why
Order 5 Rule 2 of C.P.C. provides that annexing copy of plaint to summons
is mandatory and if, the summons are searved without supplying the copy of
the plaint, the service cannot be deemed to be valid. See a Division Bench
decision of this Court in the case of Smt, Chhutbai and Another v Madanlal and
Another, AIR 1989 MP 330.
8. I have also gone through the judgments cited by the appellant
to the effect that in the absence of any cogent evidence that Tek
Chand was an employee of respondent No.3, he would not be entitled
to any compensation under the Act. Reference has been made to M/s
Shalimar Rope Works Ltd. Vs. M/s. Abdul Hussain H.M. Hasan Bhai
Bassiwala and Ors., AIR 1980 SC 1162, Jwali and Ors. Vs. Babu Lal and
Anr., AIR 1958 Allahabad 564, Smt.Chhutbai and Anr. Vs. Madanlal
and Anr., AIR 1989 Madhya Pradesh 330. However, once the
appellant has not been able to controvert the evidence led by the
respondent establishing that the deceased Tek Chand was working on
the tanker belonging to respondent No.3 and the said tanker was
being used for carrying out the activities of that respondent under the
FAO No.251 /2005 Page 3 of 4
instructions of that respondent and at the time of the accident he was
very much sitting on the tanker, this defence as pleaded by the
appellant is not available to them.
In support of submission made by the learned
counsel for respondent, reference has been made to the
decision of Supreme Court in case of N. Balakrishnan Vs.
M. Krishnamurthy reported in 1998 (7) SCC 123 and in
case of Smt. Chhutbai & Another Vs. Madanlal & Another
reported in AIR 1989 MP 330. It is also submitted that the
conduct of the plaintiff should also be seen.
In support of submission made by the learned
counsel for respondent, reference has been made to the
decision of Supreme Court in case of N. Balakrishnan Vs.
M. Krishnamurthy reported in 1998 (7) SCC 123 and in
case of Smt. Chhutbai & Another Vs. Madanlal & Another
reported in AIR 1989 MP 330. It is also submitted that the
conduct of the plaintiff should also be seen.
See, Chhutbai v.
Madanlal (AIR 1989 MP 280), Laxminarayan S. Sharma
v. Ramesh-war R. Khandaewal (AIR 1990 MP 155);
Electric Construction and Equipment Co. Ltd. (M/s.)