Holding

A summons must be accompanied by a copy of the plaint; if not, service is defective, fresh summons and a new date are required, and the limitation period for setting aside an ex‑parte decree starts from the date of knowledge of the decree, making the application timely.

Summary

The respondent sued the appellant for recovery of money and issued a summons for appearance on 10‑Oct‑1988, which was served on 14‑Oct‑1988 without attaching a copy of the plaint. The trial court, without issuing a fresh summons, proceeded to an ex‑parte hearing and decreed on 13‑Dec‑1988. The appellant learned of the decree only when served with execution summons on 2‑Dec‑1991 and filed an application on 13‑Dec‑1991 to set aside the ex‑parte decree. The Supreme Court held that a summons must be accompanied by the plaint (Order V, R.2 CPC); failure to do so makes service defective, obliging the court to fix a new date and direct fresh service (Order IX, R.6(1)(c) CPC). Consequently, the limitation period for setting aside the decree began from the date of knowledge of the decree under Article 123(2) of the Limitation Act, rendering the application timely. The ex‑parte decree was set aside subject to the appellant depositing Rs 15,000 as a reasonable condition under Order IX, R.13 CPC, and the appeal was allowed.

Issues considered

When a summons is served without a copy of the plaint, is the service defective under Order V, Rule 2 CPC?
Does the failure to serve a fresh summons after defective service require the court to fix a new appearance date under Order IX, Rule 6(1)(c) CPC?
From what date does the limitation period for filing an application to set aside an ex‑parte decree commence when service of summons is defective?
Can the court impose reasonable conditions, such as a security deposit, when setting aside an ex‑parte decree under Order IX, Rule 13 CPC?

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 13, s. Order IX Rule 6(1)(c), s. Order V Rule 2
Limitation Act, 1963s. Article 123

Subjects

service of summonscopy of plaintex‑parte decreelimitation periodOrder V Rule 2 CPCOrder IX Rule 6 CPCOrder IX Rule 13 CPCsetting aside decreecivil procedure

Judgment

~
..,. MIS NAHAR ENTERPRISES A
v.
MIS HYDERABAD ALL WYN LTD. AND ANR.

FEBRUARY 9, 2007

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

Code of Civil Procedure, 1908:
-i
Or. 5,r.2-Service of summons on defendant-When a summons is sent
,, to defendant to appear in court and to file a written statement, it is obligatory c
on Court to send along with it a copy of plaint and other documents
appended thereto.

Or. 9, r.6(J)(c)-Summons not served in due time-Held, in such a case
Court would direct plaintiff to take steps for fresh summons.
D
-1
Or. 9, r.13-Application for setting aside ex-parte decree-Limitation-
t Held, summons having not been duly served in terms of Or. 5, r.2 or provisions
.; '
of Or.9, r.6(J)(c) having not been complied with, second part of Article 123
of Schedule to Limitation Act would be attracted and limitation will begin
to run from date of knowledge ofex-parte decree-Ex-pa rte decree set aside- E
Defendant would deposit the specified amount before trial court-Limitation
Act, 1963-Schedule-Art. 123.

Respondent filed a suit for recovery of money against the appellant.
Summons for appearance on 10.10.1988 was sent to appellant which was
served on him on 14.10.1988 without enclosing a copy of the plaint Meanwhile F
-\ the Court adjourned the case for 2.12.1988. Without issuing any further
summons the Court fixed another date for ex-parte hearing and the suit was
ultimately decreed ex-parte on 13.12.1988. The appellant was served with
summons in execution case on 2.12.1991 whereupon he filed an application
on 13.12.1991 for setting the ex-parte decree, which was dismissed on the
grounds that (1) non-receipt of copy of the plaint and other documents G
alongwith the summons could not be a ground to set aside ex-parte decree;
~ (2) since there was no report about service of summons on 10.10.1988, there
was no necessity to serve fresh summons; and (3) the ex-parte decree having

413 H
~

414 SUPREME COURT REPORTS [2007) 2 S.C.R.
t:
A been passed on 13.12.1988, the application for setting aside the same filed on
13.12.1991 was barred by limitation. The appeal of the defendant having been .f' ',.
~·
dismissed by the High Court, he filed the present appeal.

Allowing the appeal, the Court :
..
B HELD: 1.1. When a summons is sent calling upon a defendant to appear
in the Court and file his written statement, it is obligatory on the part of the
Court to send a copy of the plaint and other documents appended thereto, in
terms of Order V, Rule 2 CPC. (Para 8] (416-B)
)-
1.2. The trial Court, furthermore, committed a manifest error in so far
c as it failed to take into consideration that the summons having been served f-
upon the appellant after the date fixed for his appearance, it was obligatory on "
its part to fix another date for his appearance and filing written statement
and direct the plaintiff to take steps for service of fresh summons, as envisaged
by Order IX Rule 6(1)(c) ofCPC. (Para 9) (416-D-E)
D
. 1.3. Thus, the summons having not been duly served upon the appellant
inasmuch as tl:e provisions of Order V Rule 2 CPC or provisions of Order oj.
~

IX Rule 6(1)(c) having not been complied with, the second part of Article 123
of the Limitation Act will be attracted and the date of knowledge of passing of ~ .,
the said ex-parte decree would be the date from which the limitation will begin
E to run. The ex-parte decree dated 13.12.1988 is set aside. However, in view of
Order IX, Rule 13 CPC the defendant-appellant shall deposit a sum of
Rs.15,000/- before the trial Court. (Paras 11,12 and 14] '
'
It::.
(416-H; 417-A-B; 418-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 714 of2007.
F k
From the Judgment and Order dated 28.6.2004 of the High Court of {-
Judicature, Andhra Pradesh at Hyderabad in C.M.A. No. 1253/1996.

Prakash Shrivastava for the Appellant. .

G The Judgment of the Court was delivered by
~
S.B. SINHA. J. 1. Leave granted.
~
2. Heard the learned counsel for the parties.

H
3. The appellant is before us aggrieved by and dissatisfied with the ~
NAHAR ENTERPRISES v. HYDERABAD ALL WYN LTD. [S.B. SINHA, J.] 415

judgment and order dated 28.6.2004 passed by a learned Single Judge of the A
--+ High Court of Andhra Pradesh at Hyderabad dismissing the appeal preferred
against an order dated 19. 7.1996 passed by Addi. Civil Judge Hyderabad in
l.A. No. 6/1992.

4. The respondent herein filed a suit for recovery of a sum of Rs.
1,87,904.62 with future interest at the rate of I 8.5% per annum against the B
appellant. It appears that in the summons sent to the appellant. 10 .10 .1988 was
fixed for his appearance. However, as the summons had not been served the
Court adjourned the matter to 2. I 2.1988. Summons were served on the appellant
- f....
on 14.l 0.1988. but according to him a copy of the plaint was not annexed
thereto. He sent a telegram on 17. IO .1988 and also a letter to the Court
concerned but, admittedly, the same was not responded to. Without issuing
c
any further summons fixing another date for his appearance, the Court fixed
a date and having found the appellant absent on that date, fixed another _date
for ex-parte hearing. On 13.12.1988 the suit was decreed with costs.

5. An execution case was filed by the respondent herein to execute the D
said decree. According to the appellant, the bailiff came to serve a copy of
summons on him on 2.12.1991. The said summons having been served upon
1
the appellant, he came to learn that ex-parte decree has been passed. An
> ' application for setting aside the said ex-parte decree filed on 13.12.1991. By
an order dated 17.1.1992 the learned Judge. City Civil Court, Hyderabad
dismissed the said application inter alia opining: E
(1) Non-receipt of a copy of the plaint and documents along with
the summons cannot be a ground to set aside an ex-parte decree.

(2) Moreover, Since there was no report about the service of
summons on 10.10.1988, there was no necessity to serve fresh F
summons.

(3) An ex-Parte decree having been passed on 13. 12. 1988 and an
application for setting aside the ex-parte decree having been filed on
13.12.1991, the same was barred by limitation.
G
6. An appeal preferred thereagainst was dismissed by the High Court
by reason of the impugned judgment.
... rt
7. Mr. Prakash Shrivastava, learned counsel appearing on behalf of the
appellant would submit that the Trial Court as also the High Court committed
H
416 SUPREME COURT REPORTS [2007) 2 S.C.R.

A a manifest error in passing the impugned judgment in so far as it failed to
consider the implication of: (i) the provisions of o'rder V Rule 2 of CPC: (ii) k
provisions of Order IX Rule 6 (1) (C) ofCPC: and (iii) the Provisions of Article
123 of the Limitation Act.

8. The Learned Counsel appears to be correct. When a summons is sent
B calling upon a defendant to appear in the Court and file his written statement,
it is obligatory on the part of the court to send a copy of the plaint and other
documents appended thereto, in tenns of Order 5, Rule 2 CPC.

Order V Rule 2 of the CPC reads as under:

C "Copy of plaint annexed to summons - Every summons shall be
accompanied by a copy of the plaint."

9. The learned Judge did not address itself the question as to how a
defendant, in absence 9f a copy of the plaint and other documents, would
be able to file his written statement. The Court, furthermore, in our opinion,
D committed a manifest error in so far as it failed to take into consideration that
the summons having been served upon the appellant after the date fixed for
his appearance, it was obligatory on its part to fix another date for his
appearance and filing written statement and direct the plaintiff to take steps
for service of fresh summons. This legal position is explicit in view of the \ ...
E provisions of order IX Rule 6 (1) (C) of CPC which reads:

"When summons served but not in due time - if it is proved that the
summons was served on the defendant, but not in sufficient time to
enable him to appear and answer on the day fixed in the summons,
the Court shall postpone the hearing of the suit to a future day to be
F fixed by the Court, and shall direct notice of such day to be given to
the defendant."

I 0. The court, therefore, committed an illegality in dismissing the
application for setting aside the ex-parte decree. It was a fit case where the
Court should have exercised its jurisdiction under order IX Rule 13 of CPC.
G
11. The third ground on which the learned Trial Judge dismissed the
application for setting aside the ex-parte decree was that it was barred by
limitation. The said ground in our opinion, is also without substance. The
summons had not been duly served upon the appellant inasmuch as the
provisions of order IX Rule 2 CPC or provisions oforder IX Rule 6 (1) (C)
H
NAHARENTERPRISESv. HYDERABAD ALL WYN LTD. [S.B. SINHA . .I.] 417

had not been complied with. In that view, the second part of Article 123, in A
terms whereof an applicant would be deemed to have knowledge of passing
of the said ex-parte decree would be the date from which the limitation will
begin to run, would be attracted in the instant case and not the first part
thereof.

12. We, therefore, are of the opinion that the impugned judgments B
cannot be sustained and they are accordingly set aside. The ex-parte decree
dated 13 .12.1988 is also set aside.

13. However, such an order need not be wholly unconditional one.
Imposition of such condition is permissible under order IX Rule 13 of CPC, C
as would appear from a recent decision of this Court in Tea Auction Ltd. v.
'~
Grace Hill Tealndustry & Anr., (2006) 9 SCALE 223, wherein this Court held:

"However, the interpretation of the expression 'Payment into Court'
did not' directly fall for consideration in those cases.

Order IX Rule 13 of CPC did not undergo any amendment in the year D
1976. The High Courts, for a Jong time, had been interpreting the said
provisions as conferring power upon the courts to issue certain
directions which need not be confined to cost5 or otherwise. A
discretionary jurisdiction has been conferred upon the court passing
an order for setting aside an ex-parte decree not only on the basis that E
the defendant had been able to prove sufficient cause for his non-
appearance even on the date when the decree was passed, even on
the date when the decree was passed, but also other attending facts
and circumstances. It may also consider the question as to whether
the defendant should be put on terms. The court, indisputably, however,
is not denuded of its power to put the defendants to terms. It is, F
however, trite that such terms should not be unreasonable or harshly
excessive. Once unreasonable or harsh conditions are imposed, the
appellate court would have power to interfere therewith. But, it would
not be correct to hold that no error has been committed by the
Division Bench in holding that the learned Single Judge did not G
possess such power. The Learned Single Judge exercised its
discretionery jurisdiction keeping in view that the matter has been
disposed of in fact finally at the interim stage at the back of defendant
and it was in that view of the matter a chance was given to it to
defend the suit, but, then the learned Single Judge was not correct to
H
·:/

418 SUPREME COURT REPORTS l2007] 2 S.C.R.

A direct securing of the entire sum of Rs. 37 lakhs in the form of bank ~
guarantee or deposit the sum in cash. The condition imposed should
have been reasonable. What would be reasonable terms would depend
upon facts and circumstances of each case."

14. We, therefore, direct that the appellant shall deposit a sum of Rs.
B 15,000/- before the learned court below, within a period of six weeks from
today. The appeal is allowed. In the facts and circumstances of this case,
there shall be no order as to costs.
J.·-
R.P. Appeal allowed.

\ ....