Tarlok Singh Chauhan, J.
1. Shorn of all unnecessary details, the factual matrix of the case, in brief, is that the appellant/defendant suffered exparte money decree and the
application filed for setting aside exparte decree has been ordered to be dismissed on the ground that since the RAD Exts. RW1/A and RW1/C
containing the summons had been sent at the proper and correct address and contains endorsement “Refusedâ€, therefore, it is proved on record
that the appellant/defendant was duly served and since he failed to contest the suit despite service, the Court had no option but to have proceeded
exparte against him.
2. Now, adverting to the RAD Exts. RW1/A and RW1/C, these admittedly contained summons that was sent to the defendant calling upon him to
appear in the Court and file his written statement but it did not contain the copy of the plaint, whereas it is obligatory on the part of the Court to have
sent a copy of the plaint and other documents appended thereto, in terms of Order 5, Rule 2 CPC, which reads as under:-
“Copy of plaint annexed to summons â€" Every summons shall be accompanied by a copy of the plaint.â€
3. Identical question came up before the Hon’ble Supreme Court in Nahar Enterprises vs. Hyderabad Allwyn Ltd. and another (2007) 9 SCC 466,
wherein it was observed as under:-
“8. The learned counsel appears to be correct. 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 5 Rule 2 CPC.
9. Order 5 Rule 2 CPC reads as under:-
“2. Copy of plaint annexed to summons.- Every summon shall be accompanied by a copy of the plaint.â€
10.The learned Judge did not address itself the question as to how a defendant, in absence of a copy of the plaint and other documents, would be able
to file his written statement…...â€
4. In view of the aforesaid exposition of law, it can be conveniently held that the learned Court below has committed an illegality in dismissing the
application for setting aside the exparte decree. It was a fit case where the Court should have exercised its jurisdiction under Order 9 Rule 13 CPC.
5. However, having said so, it cannot be ignored that the respondent/plaintiff has been put to burden of contesting not only this application before the
learned trial Court but the proceedings before this Court and, therefore, deserves to be compensated reasonably.
6. Accordingly, the appeal is allowed and the ex parte judgment and decree dated 28.09.2012 in a Civil Suit No. 2 of 2010, is ordered to be set aside,
however, it shall be subject to the appellant/defendant paying costs of Rs.25,000/- to the respondent/plaintiff on the next date of hearing. Parties to
appear before the learned trial Court on 24.09.2018.
7. The proceedings before the learned trial Court is restored to its original number and shall now proceed from the date when the exparte proceedings
were carried out against the appellant/defendant.
8. However, before parting, it needs to be observed that since the suit was filed in the year 2010, the learned trial Court shall make all endeavour to
dispose of the same as expeditiously as possible, in no event later than 30.06.2019.
