Sunday, 18 February 2018

Whether Service Of Summons Without Mentioning Specific Day, Date, Year And Time Can Be Held As ‘Summons Duly Served?

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.
31) 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
you(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 you (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.
32) 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.
33) 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.
34) It is for this reason, we are of the considered
opinion that 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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2113 OF 2018
(Arising out of S.L.P.(C) No. 14648 of 2017)

Auto Cars  Vs Trimurti Cargo Movers Pvt.Ltd. & Ors. 

Dated:February 15, 2018

Abhay Manohar Sapre, J.
Citation:AIR 2018 SC 1165

1) Leave granted.
2) This appeal is filed against the final judgment
and order dated 24.04.2017 passed by the High
Court at Calcutta in A.P.O. No.200 of 2017 in C.S.
1No.15/14 whereby the Division Bench of the High
Court dismissed the appeal filed by the appellant
herein and affirmed the order dated 18.08.2016
passed by the Single Judge of the High Court in GA
No.766 of 2016, in consequence, affirmed the exparte
decree dated 09.02.2015 in C.S. No.15 of
2014.
3) The controversy involved in the appeal lies in a
narrow compass. However, few facts need mention
infra to appreciate the controversy.
4) The appellant is defendant No.1 whereas
respondent No.1 is the plaintiff and respondent Nos.
2 and 3 are defendant Nos.2 and 3 in the civil suit
out of which this appeal arises.
5) The plaintiff (respondent No.1) filed a civil suit
being C.S. No 15 of 2014 in the High Court at
Calcutta on its original side against the defendants
(appellant and respondent Nos.2 and 3) for recovery
2of Rs.1,43,18,537/- on 13.01.2014. The suit was
based on some commercial dealings exchanged
between the parties in relation to services and
supply of goods etc.
6) It is, however, not necessary for the disposal of
this appeal to refer in detail the facts on which the
suit was founded to claim the amount in question
from the defendants.
7) The summons of the suit was initially sent to
the defendants at their place of business mentioned
in the cause title of the plaint, which was shown at
Aurangabad (MH). Since the defendants were not
being served with the ordinary mode of service, the
plaintiff sought permission to serve them with the
substituted service by way of publication under
Order V Rule 20 of the Code of Civil Procedure,
1908 (hereinafter referred to as "the Code"). The
permission was granted to the plaintiff.
38) The summons dated 17.11.2014 was
accordingly published in the Times of India (Pune
Edition) and Dainik Bhaskar(Aurangabad Edition)
on 25.11.2014. The summons, which was published
in papers, reads as under:
“Advertisement
The Times of India, Tuesday, Nov. 25, 2014
C.S. No.15 of 2014
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
M/s. Trimurti Cargo Movers Pvt. Ltd. a
company incorporated under the Companies
Act, 1956 having its registered office at
157-C, Lelin Sarani, Kolkata-700013, Police
Station Tal Totlla within the aforesaid
jurisdiction and branch office at 305, Shivam
Chamber, S.V. Road, Goregaon,
Mumbai-400062.
…..Plaintiff
Versus
1. M/s Auto Cars, a registered partnership firm
having its office at Adalat Road,
Aurangabad-4310001 outside the aforesaid
jurisdiction and branch office at 39-A, Harish
Mukherjee Road, Kolkata-700025.
42. Mr. Venugopal Dhoot, Partner of M/s. Auto
Cars of Adalat Road, Aurangabad-4310001
outside the aforesaid jurisdiction.
 ……Defendants
To,
1. Mr. Venugopal Dhoot, Partner of M/s. Auto
Cars of Adalat Road, Aurangabad-4310001.
2. Mr. Raj Kumar Dhoot, Partner of M/s. Auto
Cars of Adalat Road, Aurangabad-4310001
Dear Sir,
Notices hereby given under Order V Rule 20
of the Code of Civil Procedure, 1908 that the
plaintiff above named had filed a suit against
you before this Hon’ble High Court at
Calcutta on or about 13.01.2014 inter alia
praying for leave under Clause 12 of the
Letters Patent, 1865 and claims and reliefs:
(a) A decree of Rs.1,63,34,537/- against the
defendant as pleaded in paragraph 14 above;
(b) Interest at the rate of Rs.25% per annum;
(c) Interim interest and interest upon judgment
on the aforesaid decreetal amount until
realization;
(d) Receiver;
(e) Injunction;
(f) Attachment;
(g) Costs;
(h) Such further or other relief(s)
You are hereby required to cause an
appearance to be entered for you in the office
of the Registrar of this Court within 15 days
from the service upon you by way of
publication of this summons, exclusive of the
day of such service and are summoned to
appear before this Court in person or by an
5advocate of the court to answer the plaintiffs’
claim on the day the case is set down for
hearing, upon which date you must be
prepared to produce all your witnesses or
power upon which you intend to rely in
support of your case.
You are hereby required to take notice that
in default of your causing an appearance to
the so entered the suit will be liable to be
heard and determent in your absence.
Witness: Mrs. Manjula Chellur, The Chief
Justice, At Calcutta aforesaid the 13th day of
November, 2014.
Arka Kumar Ghosh
Master
17/11/14
(Santosh Kumar Ray)
Plaintiffs’ Advocate on Record
6 Kiran Shankar Roy Road
2nd Floor, Room No.707,
Kolkata-700001
9) The defendants did not appear in the case, as
directed in the summons, therefore, the Court
placed the defendants ex-parte and proceeded to
decide the suit on merits in their absence and
eventually on 09.02.2015 passed an ex-parte decree
against the defendants for a sum of
6Rs.1,43,18,537/- together with simple interest @
12% p.a. from 01.05.2013 till the date of payment.
10) On coming to know of passing of the decree
against them, the defendants filed an application
under Order IX Rule 13 of the Code on 08.03.2016
before the Court (GA No. 766/2016) praying therein
for setting aside the ex-parte decree inter alia on the
ground that the summons of the suit was not duly
served on them, therefore, they had no knowledge of
filing of the suit by the plaintiff against them. The
defendants also contended that their place of
business is at Aurangabad whereas the summons in
question was published in the daily newspaper,
Times of India at Pune. The defendants, therefore,
contended that due to this reason a case for setting
aside of the ex-parte decree, as contemplated under
Order IX Rule 13 of the Code, is made out and
hence the ex-parte decree dated 09.02.2015 passed
7in Civil Suit No.15/2014 be set aside and the
defendants be permitted to contest the suit on
merits.
11) The plaintiff filed their reply and contested the
application filed by the defendants. According to the
plaintiff, there was no illegality or irregularity in the
service of the summons on the defendants and
since despite service of the summons made
pursuant to the publication in the newspapers, the
defendants failed to appear in the suit, therefore,
they were not entitled to seek any indulgence nor
entitled to seek setting aside of the decree under
Order IX Rule 13 of the Code.
12) The Single Judge, by judgment dated
18.08.2016, dismissed the application filed by the
defendants holding that the summons were duly
served on them. The defendants felt aggrieved and
filed appeal before the Division Bench of the High
8Court. By impugned judgment, the Division Bench
dismissed the appeal and affirmed the judgment of
the Single Judge.
13) The appellant (defendant No.1) felt aggrieved
by the judgment of the Division Bench and filed the
present appeal by way of special leave before this
Court.
14) Heard Mr. Shekhar Naphade, learned senior
counsel, for the appellant, Mr. S. Chakraborty,
learned counsel for respondent No.1 and Mr.
Shashibhushan P. Adgaonkar, learned counsel for
respondent Nos.2 & 3.
15) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal and while setting
aside the impugned judgment allow the application
filed by the defendants under Order IX Rule 13 of
the Code and, in consequence, set aside the ex
9parte decree 09.02.2015 passed in Civil Suit No.
15/2014 and restore the suit on its file for being
tried on merits in accordance with law.
16) In our considered view, the issue involved in
the appeal is required to be examined keeping in
view Section 27, Appendix-B appended to the Code
read with Order V Rule 20(3) and Order IX Rule 13
of the Code.
17) Section 27 of the Code deals with issuance of
the summons to defendants. It says that where a
suit has been instituted, summons may be issued
to the defendant to appear and answer the claim
and may be served in the "manner prescribed on
such day" not beyond thirty days from the date of
the institution of the suit.
18) The format of the summons, which is used for
effecting service on the defendant, is prescribed in
Appendix-B, Process No.I. So far as Calcutta is
10concerned, the State has amended the format of the
summons as Process No.IA. These formats are
appended to the Code and read as under:
“APPENDIX B
PROCESS
No.1
SUMMONS FOR DISPOSAL OF SUIT (O.V, r. 1
and r.5)
(Title)
To
………………………………………….. [Name,
description and place of residence.]
Whereas…………………………………………
…has instituted a suit against you for
……………………………………… you are hereby
summoned to appear in this Court in person
or by a pleader duly instructed (and able to
answer all material questions relating to the
suit, or who shall be accompanied by some
person, able to answer all such questions, on
the ……… day of …….. 19…/20….., at
…….O’clock in the …… noon, to answer the
claim; and as the day fixed, for your
appearance is appointed for the final disposal
of the suit, you must be prepared to produce
on that day all the witnesses upon whose
evidence and all the documents upon which
you intend to rely in support of your defence.
Take notice that, in default of your
appearance on the day before mentioned, the
11suit will be heard and determined in your
absence.
Given under my hand and the seal of
the Court, that ……. Day of….. 19…./20…..
Judge.
Notice-1. Should you apprehend your
witnesses will not attend of their own accord,
you can have a summons from this Court to
compel the attendance of any witness, and
the production of any document that you
have a right to call upon the witness to
produce, on applying to the Court and on
depositing the necessary expenses.
2. If you admit the claim, you should
pay the money into Court together with the
costs of the suit,to avoid execution of the
decree, which may be against your person or
property, or both.”
“Calcutta- After Form No.1, insert the
following Form, namely:-
“No. 1A
SUMMONS TO DEFENDANT FOR
ASCERTAINMENT
WHETHER THE SUIT WILL BE CONTESTED
(O.V, rr. 1 and 5)
(Title)
To
………………………………………….. [Name,
description and place of residence.]
WHEREAS ………………………. has
instituted suit against you for …… you are
hereby summoned to appear in this Court in
person or by a pleader duly instructed, and
able to answer all material questions relating
the suit on the day of …… 19…/20…., at
O’clock in the …….. noon in order that on
12that day you may inform the Court whether
you will or will not contest the claim either
in whole or in part and in order that in the
event of your deciding to contest the claim
either in whole or in part, directions may be
given to you as to the date upon which your
written statement is to be filed and the
witness or witnesses upon whose evidence
you intend to rely in support of your defence
are to be produced and also the document or
documents upon which you intend to relay.
Take notice that, in default of your
appearance on the day before mentioned the
suit will be heard and determined in your
absence and take further notice that in the
event of your admitting the claim either in
whole or in part the Court will forthwith pass
judgment in accordance with such
admissions.
Given under my hand and the seal of
the Court this day of …… 19……/20…… .
Judge.
Notice- If you admit the claim either in
whole or in part you should come prepared to
pay into Court the money due by virtue of
such admission together with the costs of the
suit to avoid execution of any decree which
may be passed against your person or
property, or both.” (w.e.f. 25-8-1927)”
19) The aforementioned format of Process No.I is
uniformly prescribed for effecting service of
summons which are issued under Order V Rules 1
and 5 of the Code. It is, however, noticed that so far
13as State of UP (Allahabad) is concerned, it has
prescribed a special format of the summons for
service under Order V Rule 20 whereas so far as
Calcutta is concerned, it has not specifically
prescribed any special format for effecting service
under Order V Rule 20 of the Code on the defendant
but has prescribed a special format for effecting
service under Order V Rules 1 and 5 of the Code.
20) Since no specific format is prescribed for
effecting service of the summons under Order V
Rule 20 of the Code by Calcutta except prescribing
a special format for effecting service under Order V
Rules 1 and 5 of the Code, the format prescribed for
service of summons under Order V Rules I and 5 of
the Code is also used for issuance of summons for
effecting service under Order V Rule 20 of the Code.
21) 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), we find that there is a specific
column in the summons where a “day, date, year
and time” for defendant's appearance is required to
be mentioned.
22) 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”.
23) 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. In our opinion, 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.
24) 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.
25) 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.
26) If the specific day, date, year and the time for
defendant's appearance in the Court concerned is
not mentioned in the summons though validly
served on the defendant by any mode of service
prescribed under Order V, it will not be possible for
him/her to attend the Court for want of any fixed
date given for his/her appearance.
27) 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.
28) Now coming to the facts of the case, we find
that the summons dated 17.11.2014, which was
sought to be served on the defendants by
publication published on 25.11.2014 in the Times
of India and Dainik Bhaskar did not comply with
the requirement of Section 27 read with Appendix-B
(process) No.I and IA.
29) 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.
30) 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.
31) 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
19advocate to answer the plaintiff's claim on the day
the case is set down for hearing upon which date
you(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 you (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.
32) 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.
33) 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.
34) It is for this reason, we are of the considered
opinion that 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.
35) Once the appellant (defendant No.1) is able to
show that “summons were not duly served on him"
as prescribed under Section 27 read with Appendix
B Process IA and Order V Rule 20(3) of the Code
then it is one of the grounds for setting aside the ex
parte decree under Order IX Rule 13 of the Code. In
our view, the appellant (defendant No.1) is able to
make out the ground.
36) In view of the foregoing discussion, we need
not consider any other ground though raised by the
appellant(defendant No.1) in support of their case
because the aforesaid ground which we have dealt
with though not raised by the appellant in the
Courts below but being a pure question of law and
going to the root of the matter affecting the very
jurisdiction of the Court could be allowed to be
raised in this Court for doing substantial justice.
37) Before parting, we consider it apposite to
remind ourselves with the apt observations of a
learned Judge - Vivian Bose, J., which His Lordship
made while dealing with the scope of Order IX in a
leading case of Sangram Singh vs. Election
Tribunal (AIR 1955 SC 425).
2238) The learned Judge speaking for the Bench in
his distinctive style of writing reminded the Courts
to keep the following observations in mind while
deciding the rights of the parties which reads as
under:
“A code of procedure must be regarded as
such. It is procedure something designed to
facilitate justice and further its ends: not a
penal enactment for punishment and
penalties; not a thing designed to trip people
up. Too technical a construction of sections
that leaves no room for reasonable elasticity
of interpretation should therefore be guarded
against (provided always that justice is done
to both sides) lest the very means designed
for the furtherance of justice be used to
frustrate it. Our laws of procedure are
grounded on a principle of natural justice
which requires that men should not be
condemned unheard, that decisions should
not be reached behind their backs, that
proceedings that affect their lives and
property should not continue in their
absence and that they should not be
precluded from participating in them. Of
course, there must be exceptions and where
they are clearly defined they must be given
effect to. But taken by and large, and subject
to that proviso, our laws of procedure should
be construed, wherever that is reasonably
possible, in the light of that principle.”
2339) In the light of the foregoing discussion, the
appeal succeeds and is allowed. The judgments of
the Single Judge and Division Bench are set aside.
The appellant's (defendant No.1) application filed
under Order IX Rule 13 of the Code (GA No.
766/2016) is allowed. As a consequence, the ex
parte decree dated 09.02.2015 passed in C.S. No.
15/2014 is set aside. The civil suit is restored to its
original file.
40) Parties to appear before the concerned Court
on 05.03.2018 to enable the Court to decide the
suit. The appellant (defendant No.1) will be granted
an opportunity to file the written statement. The
Court will ensure disposal of the suit on merits in
accordance with law within a year as an outer limit.
41) It was, however, brought to our notice that
during the pendency of this appeal, the appellant
was asked to deposit a sum of Rs.47.50 lakhs which
they have deposited. Now that the suit is restored
to its original file for its decision on merits, we make
it clear that the deposit and withdrawal of Rs.47.50
lakhs would be subject to the final result of the suit.
 ………...................................J.
[R.K. AGRAWAL]
 …...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
February 15, 2018


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