AUTO CARSversusTRIMURTI CARGO MOVERS PVT. LTD. & ORS.

466                      [2018]REPORTS
               SUPREME COURT   10 S.C.R. 466              [2018] 10 S.C.R.


A                                AUTO CARS
                                       v.
             TRIMURTI CARGO MOVERS PVT. LTD. & ORS.
                        (Civil Appeal No. 2113 of 2018)
B                            FEBRUARY 15, 2018
        [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
             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
C
      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
D     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
E
      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
F     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
G
      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.

H
                                     466
   AUTO CARS v. TRIMURTI CARGO MOVERS PVT. LTD.                          467


      Allowing the appeal, the Court                                     A
      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.            B
[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          C
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           D
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                     E
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           F
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]
                                                                         G
      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
                                                                         H
468            SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A     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
B     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]
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
D     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
E     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
F     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
G     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
H     pertains to giving 15 days’ time without mentioning a specific
    AUTO CARS v. TRIMURTI CARGO MOVERS PVT. LTD.                             469


day, date, year and time is not in conformity with the requirements          A
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              B
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]
                                                                             C
       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.                                          D
                        Case Law Reference
[1955] SCR 1                      referred to              Para 37
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2113 of
2018.
                                                                             E
       From the Judgment and Order dated 24.04.2017 of the High Court
at Calcutta, Civil Appellate Jurisdiction, Original Side in APO No. 200 of
2017 in CS No. 15 of 2014.
     Shekhar Naphade, Sr. Adv., Uday B. Dube, Seshatalpa Sai
Bandaru, Advs. for the Appellants.                                           F
      S. Chakraborty, Ms. Surbhi Anand, Ms. Sonia Dubey, M/s. Legal
Options, Shashibhushan P. Adgaonkar, Rana Sandeep Bussa, Advs. for
the Respondents.
        The Judgment of the Court was delivered by
                                                                             G
        ABHAY MANOHAR SAPRE, J. 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. No.15/14 whereby the Division Bench of the High Court
dismissed the appeal filed by the appellant herein and affirmed the order
                                                                             H
470            SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A     dated 18.08.2016 passed by the Single Judge of the High Court in GA
      No.766 of 2016, in consequence, affirmed the ex- parte 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.
B            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
C     defendants (appellant and respondent Nos.2 and 3) for recovery of
      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
D     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
E     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.
            8. The summons dated 17.11.2014 was accordingly published in
F     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

G                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

H
AUTO CARS v. TRIMURTI CARGO MOVERS PVT. LTD.                      471
        [ABHAY MANOHAR SAPRE, J.]

    M/s. Trimurti Cargo Movers Pvt. Ltd. a company                A
    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
                                                                  B
    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.                               C
 2. Mr. Venugopal Dhoot, Partner of M/s. Auto Cars of Adalat
    Road, Aurangabad-4310001 outside the aforesaid
    jurisdiction.                           ……Defendants
    To,
                                                                  D
 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,                                                     E
    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         F
    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;
                                                                  G
 (c)Interim interest and interest upon judgment on the
    aforesaid decreetal amount until realization;
 (d)Receiver;
 (e)Injunction;
                                                                  H
472            SUPREME COURT REPORTS                        [2018] 10 S.C.R.


A           (f) Attachment;
            (g)Costs;
            (h)Such further or other relief(s)
               You are hereby required to cause an appearance to be
B              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 advocate of the court to answer the
               plaintiffs’ claim on the day the case is set down for
C              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
D              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
E                                        17/11/14
      (Santosh Kumar Ray)
      Plaintiffs’ Advocate on Record
      6 Kiran Shankar Roy Road
      2nd Floor, Room No.707,
F     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
G     of Rs.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
H
    AUTO CARS v. TRIMURTI CARGO MOVERS PVT. LTD.                                473
            [ABHAY MANOHAR SAPRE, J.]

aside the ex-parte decree inter alia on the ground that the summons of          A
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
                                                                                B
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 in 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    C
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.                         D
       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 Court. By impugned judgment,
the Division Bench dismissed the appeal and affirmed the judgment of            E
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            F
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        G
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 parte 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.
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474            SUPREME COURT REPORTS                        [2018] 10 S.C.R.


A            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
B     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
C     on the defendant, is prescribed in Appendix-B, Process No.I. So far as
      Calcutta is concerned, 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
D
                                        No.1
          SUMMONS FOR DISPOSAL OF SUIT (O.V, r. 1 and r.5)
                                       (Title)
                To

E                    ………………………………………….. [Name,
               description and place of residence.]
                    Whereas……………………………………………has
               instituted      a      suit     against     you     for
               ……………………………………… you are hereby
F              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
G              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.
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AUTO CARS v. TRIMURTI CARGO MOVERS PVT. LTD.                    475
        [ABHAY MANOHAR SAPRE, J.]

          Take notice that, in default of your appearance on    A
    the day before mentioned, the suit will be heard and
    determined in your absence.
          Given under my hand and the seal of the Court,
    that ……. Day of….. 19…./20…..
                                                 Judge.         B
          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    C
    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          D
    person or property, or both.”
    “Calcutta- After Form No.1, insert the following Form,
    namely:-
                           “No. 1A
             SUMMONS TO DEFENDANT FOR                           E
                     ASCERTAINMENT
       WHETHER THE SUIT WILL BE CONTESTED
                       (O.V, rr. 1 and 5)
                            (Title)
    To                                                          F
          ………………………………………….. [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         G
    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 that 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
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476             SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A               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
B
                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
C               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.
D
                      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,
E               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 as
      State of UP (Allahabad) is concerned, it has prescribed a special format
F     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.
G           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.
H
    AUTO CARS v. TRIMURTI CARGO MOVERS PVT. LTD.                              477
            [ABHAY MANOHAR SAPRE, J.]

      21. In the format prescribed in the Appendix-B Process No.I or          A
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    B
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”.                     C

      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         D
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.
                                                                              E
       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.    F
      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.                          G
       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
                                                                              H
478             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     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
B     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
C     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
D     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
E     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
F     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
G     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
H
    AUTO CARS v. TRIMURTI CARGO MOVERS PVT. LTD.                             479
            [ABHAY MANOHAR SAPRE, J.]

time is not in conformity with the requirements of Section 27 read with      A
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,          B
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   C
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            D
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     E
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.                                                   F
       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).
                                                                             G
       38. 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
                                                                             H
480                SUPREME COURT REPORTS                      [2018] 10 S.C.R.


A           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
B
            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
C           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.”
D
             39. 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.
E     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
F     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
G     and withdrawal of Rs.47.50 lakhs would be subject to the final result of
      the suit.


      Ankit Gyan                                                   Appeal allowed.

H