Code of Civil Procedure, 1908 – s. 27, Appendix-B r/w. Or.V, r.20(3) and Or. IX, r.13 – Respondent No.1-Plaintiff filed a suit in the High Court at Calcutta for recovery of money – Summons sent to Appellant-defendant No.1 and Respondents Nos.2 & 3-defendant Nos.2 &3 were not served with ordinary mode of service – Plaintiff sought substituted service by way of publication in daily newspapers u/Or.V, r.20 – Permission was granted to plaintiff and summons were published in the newspapers – Defendants did not appear in the case, the Court proceeded to decide the suit on merits in their absence and passed an ex-parte decree – Defendants filed application u/Or.IX, r.13 for setting aside the ex-parte decree inter alia on the grounds that the summons of the suit was not duly served on them – Application dismissed by the High Court – On appeal, held: Appellant successfully made out a ground contemplated u/Or.IX, r.13 for setting aside the ex-parte decree – On facts, the summons which was sought to be served on the defendants by publication in the newspapers did not comply with requirement of s.27 r/w. Appendix-B (process) No.I and IA (As amended by the State) – The material infirmity in the summons was that it did not mention any specific day, date, year and time for defendants’ appearance in the Court – This (specific day, date, year and time for appearance) being the requirement of s.27 r/w. Or.V, r.20(3) and process-IA of Appendix-B, it would have enabled the defendants to appear before the Court on the date so fixed therein – Whereas, the wordings in the summons in question was that the defendants should appear before the Registrar of the Court within 15 days from the service of publication of summons without mentioning a specific day, date, year and time – It is not in conformity with the requirements of s.27 r/w. Appendix B.
Allowing the appeal, the Court
HELD: 1. In the format prescribed in the Appendix-B Process No.I or No.IA (which is applicable to the case at hand because the suit in question originates from Calcutta), there is a specific column in the summons where a “day, date, year and time” for defendant’s appearance is required to be mentioned. [Para 21] [477-A-B]
2. In other words, the legislature while prescribing the format of summons in the Code has provided one column where the Court is required to mention a specific “day, date, year and time” for the defendant’s appearance in the Court to enable him to answer the suit filed against him/her. This is also the requirement prescribed under Section 27 of the Code as is clear from the words occurring therein “and may be served in the manner prescribed on such day”. [Para 22] [477-B-C]
3. Order V Rule 20(3) provides that when the service is effected by way of publication by the orders of the Court, the Court has to fix “time” for the appearance of the defendant, as the case may require. This does not dispense with the requirement of mentioning the actual day, date, year and time for defendant’s appearance in the Court because it is prescribed in format. The expression “time” has to be read harmoniously and in juxtaposition with the requirement prescribed under Section 27 read with statutory format Process IA of Appendix-B appended to the Code. Indeed, mentioning of the specific “day, date, year and time” in the summons is a statutory requirement prescribed in law (Code) and, therefore, it cannot be said to be an empty formality. It is essentially meant and for the benefit of the defendant because it enables the defendant to know the exact date, time and the place to appear in the particular Court in answer to the suit filed by the plaintiff against him. [Paras 23, 24 and 25] [477-D-F]
4. The object behind sending the summons is essentially threefold- First, it is to apprise the defendant about the filing of a case by the plaintiff against him; Second, to serve the defendant with the copy of the plaint filed against him; and Third, to inform the defendant about actual day, date, year, time and the particular Court so that he is able to appear in the Court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer. [Para 27] [477-G-H; 478-A]
5. On facts, the summons dated 17.11.2014, which was sought to be served on the defendants by publication published on 25.11.2014 in the newspapers did not comply with the requirement of Section 27 read with Appendix-B (process) No.I and IA. In other words, the summons dated 17.11.2004 published in the papers (Times of India and Dainik Bhaskar) had material infirmity therein, which rendered the summons so also the service made on the defendants bad in law. [Paras 28 and 29] [478-B-C]
6. The material infirmity in the summons was that it did not mention any specific day, date, year and time for the defendants’ appearance in the Court. This being the requirement of Section
27 read with Order V Rule 20(3) and Process-IA of Appendix-B, it was mandatory for the Court to mention the specific working day, date, year and time in the columns meant for such filling. It would have enabled the defendants to appear before the Court on the date so fixed therein. It is a settled rule of interpretation that when the legislature provides a particular thing to be done in a particular manner then such thing has to be done in the same prescribed manner and in no other manner. [Para 30] [478-D-E]
7. What was, however, mentioned in the summons in question was that the defendants should appear before the Registrar of the Court within 15 days from the service of publication of this summons on them exclusive of the day of such service of the summons and are summoned to appear before this Court in person or through advocate to answer the plaintiff’s claim on the day the case is set down for hearing upon which date defendants must be prepared to produce all your witness and all your documents in your possession or power upon which you intend to rely in support of your case. The summons then also mentioned that defendants are hereby required to take notice that in default of your causing an appearance to be so entered, the suit will be liable to be heard and determined in your absence. [Para 31] [478-F-G]
8. The aforesaid wording in the summons insofar as it pertains to giving 15 days’ time without mentioning a specific day, date, year and time is not in conformity with the requirements of Section 27 read with Appendix B. [Para 32] [478-H; 479-A]
9. In the light of the foregoing discussions, service of summons on the defendants without mentioning therein a specific day, date, year and time cannot be held as “summons duly served” on the defendants within the meaning of Order IX Rule 13 of the Code. In other words, such summons and the service effected pursuant thereto cannot be held to be in conformity with Section
27 read with the statutory format prescribed in Appendix B Process (I and IA) and Order 5 Rule 20(3) of the Code. [Para 33] [479-B]
10. It is for this reason, the appellant (defendant No.1) was able to make out a ground contemplated under Order IX Rule 13 of the Code for setting aside the ex parte decree. [Para 34] [479-C] Sangram Singh v. Election Tribunal AIR 1955 SC 425 : [1955] SCR 1 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.