Union of India vs Smt. Bishan Devi and Another

D.V. Sehgal, J.—Bishan Devi, Plaintiff-Respondent No. 1, alleged that she is the owner of land measuring 324 Kanals 14 Marias as detailed in the head note of the plaint, which was allotted to her in lieu of the land left by her in West Punjab. She consequently claimed that she was the owner of Kharkana standing on the suit-land and the Union of India, Defendant No. 1, had no interest or title either in the suit-land or in respect of Kharkana standing thereon. She further alleged that in the month of October 1972 Shri T. S Bedi, Naib Tehsildar, Hoshiarpur, auctioned the Kharkana standing on the suit-land for Rs. 190/- to Defendant No 2 at her back, which Defendant No. 1 was not competent to sell. On the basis of these allegations, she first served a notice u/s SO of the CPC (hereinafter referred to as "the Code") on Defendant No. 1 and the Collector, Hoshiarpur, and then filed the instant suit for declaration to the effect that she is the owner of the suit-land measuring 324 Kanals 14 Marias situated in village Dada, District Hoshiarpur, and the Kharkana standing thereon. She also claimed consequential relief of permanent injunction restraining the Defendant from auctioning the said Kharkana and for recovery of Rs. 190/- which Defendant No 1 had realized from Defendant No. 2 Ram Chand by auctioning the Kharkana to him in October, 1972.

The trial Court, vide its order dated 10-1-1974 directed the suit to be registered and summons to be issued to Defendants Nos. 1 and 2 on process fee for 1-3-1974. On that date, Pritam Singh Qanungo (Sales) appeared on behalf of Defendant No. 1 and requested for adjournment for filing written statement. Defendant No. 2, however, did not appear in spite of service and he was proceeded against expert. The ease was then adjourned to 22-3-1974 but no one appeared on behalf of Defendant No. 1 on that date and, consequently, expert proceedings were ordered against it and the case was adjourned to 27-4-1974 for expert evidence On 16-4-1974, the District Attorney moved an application on behalf of Defendant No. 1 for setting aside the expert proceedings. It was averred therein that he has received instructions in this case for Defendant No. 1 on 11-3-1974 but the same had been wrongly linked with the file of another case instituted by Bishan Devi against Punjab State and, consequently, the District Attorney, being not aware of the date of hearing, could not appear in the instant suit After receiving reply to the application from the Plaintiff and evidence adduced thereon, the learned trial Court dismissed the same, vide order dated 27-8-1974. Thereafter, ex parte evidence of the Plaintiff was received and the suit was decreed in her favour and against the Defendants by the learned Senior Sub Judge, Hoshiarpur, vide judgment and decree dated 23-4-1975. The Union of India preferred an appeal before the learned District Judge, Hoshiarpur but the same was dismissed, vide his judgment and decree dated 18-2-1977. Consequently, the present regular second appeal was preferred before this Court.

The learned Counsel for the Appellant contended that the Appellant was not properly and duly served in the suit He invited my attention to the report on the summons at page 95 of the trial Court file, which shows, without doubt, that service of summons was effected on the Appellant but without a copy of the plaint Relying on Order v. Rule 2 of the Code, he contended that, since it was mandatory that the summons should have accompanied by a copy of the plaint or, if permitted, concise substance thereof and, since this provision had not been complied with, the service could not be deemed to be service in the eyes of law He further submitted that appearance of Pritam Singh Qanungo (Sales) on behalf of the Appellant before the trial Court on 1.3.1974 is of no consequence because the said Qanungo had no authority to put in appearance on behalf of the Appellant. He contended that, in the absence of a copy of the plaint, it was quite natural that the instructions received by the District Attorney from the Appellant got mixed with another suit filed by Respondent 2 against Punjab State He asserted that the order dated 27.8.1974 passed by the trial Court rejecting the application of the Appellant for setting aside the order dated 22.3.1974 proceeding against the Appellant expert, is not sustainable and has to be set aside.

4 The learned Counsel for the Respondents, on the other hand, have contended that the provisions of Order V, Rule 2 of the Code are not mandatory in character Even otherwise, according to him, Pritam Singh Qanungo (Sales) had put in appearance on behalf of the Appellant before the trial Court on 1.3.1974 for which date the Appellant was served through the summons. The fact that the summons was not accompanied by a copy of the plaint, therefore, loses significance. The counsel further invited any attention to page 97 of the trial Court file. which is the original summons served on the Appellant for 1.3.1974 There is an endorsement on the back of the summons, by which some official has directed "Shri P. S Pathania, Qanungo (S)" to attend the Court on 1.3.1974 and report the proceedings of the case This endorsement is signed by this official under the date of 26th February, 1974. The identity of this official is, however, not decipherable The learned Counsel also raised a legal plea to the effect that, as is evident from the reply filed by Respondent No 1 before the appellate Court, the Appellant had filed a revision petition in this Court against the order dated 27.8.1974 refusing to set aside the expert proceedings and the said revision had been dismissed in limine. On this basis, be contended that the order dated 22.3.1974 of the trial Court proceeding against the Appellant expert, has become final and would operate as res judicata According to him, it is not open to the Appellant to re-agitate in this appeal and con end that it was not properly served in the suit or that the order dated 27.8.1974 rejecting its prayer for setting aside the expert proceedings was bad in law. For this proposition, the learned Counsel placed reliance on Ramsarup Dass and Others Vs. Pyare Das and Another, . and Gian Singh v. Nathu Singh and Ram Parskad 1977 P. L. J. 205.

Having heard the rival contentions of the learned connsel for the parties, I am of the view that, in the interest of justice, this appeal has to be allowed so as to enable the Appellant to contest the suit on merits, particularly when its title to the suit land measuring 324 Kanals 14 Marlas has been brought into question. I am not impressed by the contention of the learned Counsel for the Respondents that non compliance of requirements of Order V, Rule 2 of the Cods, while effecting service of summons on the Appellant, was of no consequence. It has been held in M/s. Parma Nand Bhalothia & Sons v. Adrash Oil Mills, Bazar Gandanwala Amritsar (1976) 78 P. L. R. 431. as under:- "Order v. Rule 2 of the Code clearly lays down that "every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement." The word ''shall'' in this provision is clearly and expressly mandatory in nature as the same is intended to ensure that the Defendant is not taken by surprise It is only when the Defendant receives a copy of the plaint at the time of the service of the summons on him that he has a clear picture of the nature of the suit having been filed against him and the nature of the pleas that he is required to meet on appearance in the Court on the date fixed " Reliance was also placed on Jagan Nath v. Tek Chand (1974) 76 P. L. R. 339., wherein it was held as under:-

Mere service of the summons is not synonymous with ''due service'' as used in Order IX, Rule 13 of the Code of Civil Procedure, merely because the Defendant had been served with a summons of the suit without a copy of the plaint, the learned trial Court had no jurisdiction to proceed to decide it expert. That could be done only if the Defendant had been duly served, that is, he had been served with the summons along with a copy of the plaint.

When the District Attorney moved the application before the trial Court for setting aside the expert proceedings against the Appellant and made averments therein that the instructions received from the Appellant had been wrongly tagged with the file of another suit instituted by Respondent No 1 against Punjab State, there were reasonable grounds for believing the same. When contents of the plaint and the nature of the instant suit filed by Respondent No 1 against it were not to the knowledge of the Appellant, the instructions sent by it to the District Attorney naturally must not have contained the particulars of this suit Since the name and other particulars of the Plaintiff were identical both in the instant suit and in the other suit, by a slight inadvertence the instructions so received could have been tagged with the file of that suit.

As to the contention of the learned Counsel for the Respondents that Pritam Singh Qanungo (Sales) put in appearance before the trial Court on 1-3-1974 and, as is evident from the original summons at page 97 of the trial Court file, he had been directed by some higher official to do so, it would suffice to say that the said Qanungo had no authority in law to represent the Appellant before the trial Court. His appearance, therefore, does not wipe out the infirmity in the summons served on the Appellant for appearance in the instant suit.

The contention of the learned Counsel for the Respondents that the dismissal of the revision petition filed by the Appellant against the order dated 27-8-1974 of the trial Court rejecting its application for setting aside the order proceeding against it expert, by this Court, works as res judicata, also in my view, has no substance. Although no particulars of the said revision petition have been brought on the record, yet learned Counsel for the Respondents concedes that the revision petition was dismissed in limine. The basic authority wherein this question was debated is a Division Bench judgment of this Court in Balkishan Dass Vs. Parmeshri Dass deceased substituted by Madhuri Sharan Sharma and Others, . It was held therein that where an interlocutory order is beared on merits either in appeal or in revision, the matter becomes res judicata. The revision petition against the order of the trial Court dated 27.8.1974 having been dismissed in limine it is clear that this Court refused invocation of its revisional jurisdiction in respect of the said order. The order of dismissal of the revision petition in limine, therefore, does operate as ret Judicata.

In view of the aforesaid discussion, I allow this appeal, set aside the judgments and decrees of the Courts below and remand the case to the trial Court for its decision afresh on merits after allowing the Appellant to enter on its defense by filing its written statement This order, however, is subject to payment of Rs. 500/- as costs by the Appellant to Respondent No. 1. There shall be no order as to costs in this appeal.

The parties through their learned Counsel are directed to appear before the trial Court on 10th March, 1986.