AUTO CARS versus TRIMURTI CARGO MOVERS PVT. LTD. & ORS.

Citation: [2018] 10 S.C.R. 466 · Decided: 15-02-2018 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 10 S.C.R.
AUTO CARS
v.
TRIMURTI CARGO MOVERS PVT. LTD. & ORS.
(Civil Appeal No. 2113 of 2018)
FEBRUARY 15, 2018
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
Code of Civil Procedure, 1908 – s. 27, Appendix-B r/w. Or.V,
r.20(3) and Or. IX, r.13 – Respondent No.1-Plaintiff filed a suit in
the High Court at Calcutta for recovery of money – Summons sent
to Appellant-defendant No.1 and Respondents Nos.2 & 3-defendant
Nos.2 &3 were not served with ordinary mode of service – Plaintiff
sought substituted service by way of publication in daily newspapers
u/Or.V, r.20 – Permission was granted to plaintiff and summons were
published in the newspapers – Defendants did not appear in the
case, the Court proceeded to decide the suit on merits in their
absence and passed an ex-parte decree – Defendants filed
application u/Or.IX, r.13 for setting aside the ex-parte decree inter
alia on the grounds that the summons of the suit was not duly served
on them – Application dismissed by the High Court – On appeal,
held: Appellant successfully made out a ground contemplated
u/Or.IX, r.13 for setting aside the ex-parte decree – On facts, the
summons which was sought to be served on the defendants by
publication in the newspapers did not comply with requirement of
s.27 r/w. Appendix-B (process) No.I and IA (As amended by the
State) – The material infirmity in the summons was that it did not
mention any specific day, date, year and time for defendants’
appearance in the Court – This (specific day, date, year and time
for appearance) being the requirement of s.27 r/w. Or.V, r.20(3)
and process-IA of Appendix-B, it would have enabled the defendants
to appear before the Court on the date so fixed therein – Whereas,
the wordings in the summons in question was that the defendants
should appear before the Registrar of the Court within 15 days
from the service of publication of summons without mentioning a
specific day, date, year and time – It is not in conformity with the
requirements of s.27 r/w. Appendix B.
[2018] 10 S.C.R. 466
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Allowing the appeal, the Court
HELD: 1. In the format prescribed in the Appendix-B
Process No.I or No.IA (which is applicable to the case at hand
because the suit in question originates from Calcutta), there is a
specific column in the summons where  a “day, date, year and
time” for defendant’s appearance is required to be mentioned.
[Para 21] [477-A-B]
2. In other words, the legislature while prescribing the
format of summons in the Code has provided one column where
the Court is required to mention a specific “day, date, year and
time” for the defendant’s appearance in the Court to enable him
to answer the suit filed against him/her.  This is  also the
requirement prescribed under Section 27 of the Code as is clear
from the words occurring therein “and may be served in the
manner prescribed on such day”. [Para 22] [477-B-C]
3. Order V Rule 20(3) provides that when the service is
effected by way of publication by the orders of the Court, the
Court has to fix   “time” for the appearance of the defendant, as
the case may require. This does not dispense with the requirement
of mentioning the actual day, date, year and time for defendant’s
appearance in the Court because it is prescribed in format.  The
expression “time” has to be read harmoniously and in
juxtaposition with the requirement prescribed under Section 27
read with statutory format Process IA of Appendix-B appended
to the Code.  Indeed, mentioning of the specific “day, date, year
and time” in the summons is a statutory requirement prescribed
in law (Code) and, therefore, it cannot be said to be an empty
formality.  It is essentially meant and for the benefit of the
defendant because it enables the defendant to know the exact
date, time and the place to appear in the particular Court in answer
to the suit filed by the plaintiff against him. [Paras 23, 24 and 25]
[477-D-F]
4. The object behind sending the summons is essentially
threefold- First, it is to apprise the defendant about the filing of a
case by the plaintiff against him; Second, to serve the defendant
with the copy of the plaint filed against him; and Third, to inform
the defendant about actual day, date, year, time and the particular
AUTO CARS v. TRIMURTI CARGO MOVERS PVT. LTD.
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[2018] 10 S.C.R.
Court so that he is able to appear in the Court on the date fixed
for his/her appearance in the said

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