K.S. Lodha, J.
1. This is a plaintiffs revision against the order of the learned Additional District Judge, Udaipur dt. 17-5-83 accepting the defendant's appeal against the order of the learned Civil Judge, Udaipur dt. 19-2-81 and setting aside the ex parte decree passed against the defendant Shanti Lal in a suit for recovery of money.
2. The first date of hearing fixed in the suit was 13-9-79. The summons sent to the defendant was returned with the report that he had gone to Bombay. The case was then adjourned to 4-12-79 and summons was sent both in the ordinary course as also by registered post. The summons sent in the ordinary course was returned with the report that the defendant was at Bombay and would not return till 15-12-79. The summons sent by registered post was, however, returned with the endorsement of refusal dt. 20-11-79.
3. On 4-12-79 the staff of the Court was on strike and, therefore, the case could not be taken up. It was then taken up on 31-12-79 and adjourned to 11-3-80. The parties were not present on that day neither any notices were issued to them for the date of hearing 11 -3-80. However, on 11-3-80 the plaintiff appeared but the defendant did not and in view of the endorsement of refusal on the summons for the-date of hearing 4-10-79 the Court recorded that the summons had been served and the defendant having not appeared, he was placed ex parte. Ex parte evidence of the plaintiff was recorded on 1-4-80 and decree was passed in his favour on 4-4-80,
4. The defendant moved an application on 8-5-80 for getting the ex parte decree set aside. His case was that the summons was never offered to him and he had never refused the same. He had no knowledge of the decree till 8-5-80 when this application for setting aside the same was moved. It was also mentioned that he also did not have any notice of the date of hearing 11-3-80. The plaintiff contested the application. His case was that the defendant had even on the earlier occasion made a wrong report to the effect that the defendant was at Bombay whereas he was present at Udaipur and the endorsement that the defendant had gone to Bombay was in his own hand. It was contended that the summons for 4-12-79 was offered to him but he refused the same. He had thus knowledge of the suit and of the decree and the application for setting aside the decree was barred by time.
5. After taking the evidence of the parties and hearing them, the learned Civil Judge dismissed the defendant's application holding that the defendant had refused the summons sent to him for the date 4-12-79 and had not appeared despite service. On appeal the learned Additional District Judge, however, was of the view that the summons sent by registered post was not accompanied by a copy of the plaint as required by Order 5 Rule 2 C.P.C. and, therefore, the surnmons was not a proper summons and the refusal of such summons does not amount to proper service. He was further of the view that as on 4-12-79 the matter was not taken up by the Court due to strike, the defendant was entitled to a notice of the next date of hearing but was not given any such notice and, therefore, also, an ex parte decree passed on 4-4-80 was liable to be set aside. Accordingly he accepted the appeal and set aside the ex parte decree. The plaintiff has now come up in revision.
6. I have heard learned counsel for the parties.
7. The learned counsel for the petitioner at the first instance submitted that the endorsement on the summons for the date 13-9-79 to the effect that the defendant had gone to Bombay had been made by the defendant himself by impersonating as Mohanlal and the matter was enquired into by the learned civil judge and a criminal complaint has been filed against the defendant. The summons for the date of hearing 4-12-79 has been held to have . been refused by the defendant by both Courts below. In these circumstances, the learned Additional District Judge could not have set aside the ex parte decree merely on the ground that the service was not proper because the summons was not accompanied by a copy of the plaint. His second contention was that even if the service was taken to be insufficient not proper, then also, the defendant had already acquired the knowledge of the next date of hearing while refusing the summons dt. 4-12-79 and had sufficient time to appear, therefore, the Court had no jurisdiction to set aside the ex parte decree in view of the second proviso to Order 9 Rule 13 C.P.C.
8. I have given my careful consideration to these contentions.
9. So far as the first contention goes it appears to be devoid of force. The matter whether the endorsement on the summons for the date 13-9-79 was forged by the defendant in the name of Mohanlal, does not appear to have been made a subject matter of controversy in these proceedings, no evidence in this respect has been produced and both Courts below have not gone into it. It, therefore, cannot be raised now at this stage before the revisional Court. The mere fact that a criminal complaint is alleged to have been filed against the defendant cannot necessarily lead the Court to the conclusion that the endorsement was really in the hand of the defendant in the assumed name of Mohanlal.
10. So far as refusal of the summons for the date 4-12-79 is concerned, it is not in dispute that the summons was not accompanied by a copy of the plaint. Order 5 Rule 2 C.P.C. clearly lays down that every summon shall be accompanied by a copy of the plaint or, if no permitted, by a concise . statement. The Court in this case had not permitted concise statement to be sent along with the summons and thus when the summons was not accompanied by a copy of plaint the summons was not a complete summons and the endorsement of refusal of such summons cannot be said to be proper service.
11. Now I shall come to the question whether the second proviso to Order 9 Rule 13 C.P.C. barred the learned Additional District Judge from setting aside the ex parte decree in this case. It may at once be stated that as a matter of fact it had not been contended in the two courts below that the defendant had'acquired the knowledge of the date of the hearing of the suit while refusing the summons and, therefore, in the first place such a contention cannot be allowed to be raised for the first time in the revision because it is a question of fact whether the defendant had knowledge of the date of hearing of the suit despite' the irregular service of the summons. In the second place, the refusal of these summons by itself does not give rise to a presumption that the defendant had acquired knowledge of date of hearing of the suit specially when the summons was not accompanied by a copy of the plaint. When the summons was not accompanied by a copy of the plaint the defendant was perfectly within his right to have refused to accept the summons and in that event he need not have even looked at the summons to find out its contents. If that was so, he could not have come to know of the date-of the hearing. The learned counsel, however, contended that it was on account of wilful abstinence of the defendant that he may not have come to know of the date of hearing because if he wanted to have knowledge of the date, he could have accepted the summons and if summons was not accompanied with a copy of the plaint he could have appeared before the court and asked for an adjournment. I am unable to accept this contention. The second proviso to Order 9 Rule 13 CPC does not contemplate that despite the irregular service the ex parte decree would not be set aside if the defendant could have acquired knowledge of the date of the hearing of the suit. What it says is that the court shall not set aside a decree...... if it is atisfied that the defendant had notice of the date of hearing. Therefore, in order to get the benefit of this proviso the plaintiff has to show that the defendant had knowledge of the date of hearing of the suit despite the irregular service. He cannot take advantage of this proviso merely by showing that the defendant could have acquired knowledge of the date of hearing if he so chose. Now as already stated above the fact that the defendant had knowledge of the date of the hearing 4-12-79 was not agitated before the courts below and, therefore, there is no material on the record to show that the defendant had such knowledge. Thus this proviso is of no avail to the plaintiff in this case.
12. It will not be out of place here to mention that the learned Additional District Judge has also relied upon the fact that in any case when the case was not taken up on 4-12-79 due to strike and no notice of the next date of hearing was given to the defendant, the defendant may not have come to know of the decree passed on 4-4-80 in his absence and, therefore, also the decree was liable to be set aside and in my opinion looking to the circumstances of this case this could not be said to be an altogether irrelevant consideration.
13. In these circumstances I find no justification for interference with the order of the learned Additional District Judge.
14. For the reasons stated above this revision fails and it hereby dismissed, however, without any order as to costs.
15. The record of the case may be sent back to the courts below immediately. The parties are directed to appear before the learned Civil Judge, Udaipur an 6-2-1984.