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Report No. 144

6.6.2. Question for consideration.-

The question has arisen whether an ex parte decree can be;seek-aside for breach of Order 5, rule 2.

6.6.3. The High Court of Punjab and Haryana has held that not attaching the copy of the plaint to the summons is a mere irregularity; and if the defendant has come to know of- the case, the ex parte decree cannot be set aside, merely on the ground of the above irregularity1.

1. Risaldar Pakhar Singh v. Bhajan Singh, AIR 1987 P&H 170 (172, 173), paras. 6 to 9.

6.6.4. But the High Court of Orissa seems to have taken a different view on the subject1.

1. Hiren Ghosh v. Sasikala Padhi, (1984) 57 Cutt LT 494, cited in Risaldar Pakhar Singh v. Bhajan Singh, AIR 1987 P&H 170 (172, 173), paras. 5 and 10.

6.6.5. The Madhya Pradesh High1 Court has also held that the language of Order 5, rule 2 is mandatory and whenever summons are issued to a defendant, it must accompany a copy of the plaint or a concise statement. It observed as follows:-

"The law is that along with the summons, a copy of the plaint should be served as it is very much essential because the purpose of service of a copy of the plaint, or if so permitted, of a concise statement thereof is to bring home to the defendant knowledge of a particular suit having been instituted against him so that he may know what is the claim brought out by the plaintiff against him and he may make up his mind to defend himself or not. This is the reason why the lawmakers have made rule 2 of Order 5, C.P.C. mandatory by using the word shall. Accordingly, if the summons is not issued it cannot be said they there is a valid service on the defendant and when there is no valid service, even if an ex parte decree is passed on such service, it has to be set aside."

1. Laxminarayan v. Rameshwar, AIR 1990 MP 155.



Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back




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