S.K. Dubey, J.
1. This appeal under Order 43 Rule l(d) of theCode of Civil Procedure, read with Section 28 of the Hindu Marriage Act, 1955(for short the 'Act'), is against the order dt. 24.10.89 passed in Misc. CivilCase No. 7/1987, whereby the District Judge, Dewas dismissed the applicationof the appellant/defendant under Order 9 Rule 13, C.P.C, for setting aside theex-parte decree dated 19.3.1987 passed for dissolution of marriage in Civil SuitNo. 24-A/86.
2. Brief facts leading to this, appeal are thus: that the respondentplaintiff, the husband of the appellant/defendant, instituted a suit Under Section13(1) (ia) & (ib) of the Act for dissolution of marriage. Of the suit the summons were not served in the ordinary manner as well as by the registered post. The registered envelope was received back with the postal endorsement of 'incomplete address'. On the application of the respondent, under Order 5 Rule20 (1-A) of C.P.C. the Court ordered for effecting service by way of publication. The publication was made in 'Daily Prasaran', wherein the date 22,1.1987was fixed for hearing and appearance of the respondent. On 22.1.87 thePresiding Officer was on leave, therefore the clerk of the Court adjourned thecase to 28.1.87. On 28.1.87 the Court adjourned the case to 28.2.87, no thisday too the Presiding Officer was on leave, hence, the clerk of the Court fixedthe case to 9.3.87. On 9.3.87 the Court did not proceed ex-parte against theappellant/defendant and adjourned the case to 13.3.87 marking absence of theappellant/defendant.
3. The appellant having come to know from her neighbour thatthe publication has been made, sent an application by registered post, whichwas received by the Court on 22.1.87, the date fixed for appearance, making aprayer therein to supply the copy of the plaint so that the appellant/defendantmay attend and defend the case. The appellant also sent a self-addressedstampped envelope so as to receive the reply, but, no order was passed on thisaplication on 22-1-87 and on 9.3.87.
4. On 13.3.87 the Court rejected the application and proceeded exparte. On 19.3.87 the statement of the respondent/husband was recorded andex-parte decree for dissolution of marriage was passed on the aforesaid twogrounds.
5. The appellant having come to know, filed an application underOrder 9 Rule 13 C.P.C. for setting aside the ex-parle decree. That applicationwas opposed on various grounds taking plea of limitation and to the proviso ofOrder 9 Rule 13 C.P.C. contending that the defendant had the notice of thedate of hearing and had sufficient time to appear and answer the claim, therefore, the irregularity in service will not affect the validity of the ex-partedecree.
6. The Trial Court dismissed the application as barred by time, ashaving not been filed within 30 days from the date of passing of the ex-partedecree.
7. It is this order which has been challenged in appeal.
8. Shri R.S. Kochatta, Counsel for the appellant, Shri S.S. SamvatsarCounsel for the respondent, heard. '
9. After hearing Counsel, I am of the opinion that this appeal hasto be allowed and the ex-parte decree has to be set aside, for the reasons hereinafter to follow.
10. The law is settled that as far as possible the personal service is tobe affected, but, the defendant who is served by publication, appears and makesa prayer to supply a copy of the plaint to contest the suit, the Court is boundto order to supply the copy of the plaint so as to enable the defendant toknow, the concise statement thereof and the particular claim brought by theplaintiff against him, and make up the mind against the claim, that is whyOrder 5 Rule 2 of C.P.C. provides that annexing copy of plaint to summonsis mandatory and if, the summons are searved without supplying the copy ofthe plaint, the service cannot be deemed to be valid. See a Division Benchdecision of this Court in the case of Smt, Chhutbai and Another v Madanlal andAnother, AIR 1989 MP 330.
11. It was contended that the defendant on service by affixturehaving gathered knowledge was bound to appear and the Court is not obligedto send a copy of the plaint, therefore, the ex-parte decree was rightly passed.
True, the defendant ought to have appeared on 22.1.1987, but nothing wasdone on 22.1.87, as the Presiding Officer was on leave, hence, the case wasadjourned by the clerk of the Court to 9.3.87 which was not the date for hearing and the party's absence on that date did not give jurisdiction to Court to Proceed ex-parte, which is the consistent view of this Court. See 1991 MPLJ 329, Sushila Bai v. Ram Nihore Jagatdhari Prasad Patel, 1986 C.C.LJ. Note 39, Mohanlal Brijlal Partnership Firm v. Manga, and 1978 Vol. I MPWN, Note 443, Kranti Kunar Jha v. Dr. J.B. Shrivastave.
12. In case of Kranti Kumar Jha (supra) this Court relying on AIR1964 MP 261, Nanda Dayaram v. Rajaram, has observed that in the absenceof the Presiding Judge, the Court should be deemed to have been closed forjudicial functioning, or say, as if a date had been fixed which happened to be aholiday, if a summons issued for a date which happened to be a holiday, thedefendant was under no obligation to appear on that day or on the followingday to find out for which date the case stood adjourned. The summons couldnot be treated as a proper summons under Order 5 Rule 1 C.P.C. therefore, aparty may wait for another notice.
13. In view of this, in my opinion, the Court was having no jurisdiction to proceed with the case against the defendant ex-parte,
14. In such a case plea of limitation under Article 123 of the Limitation Act was not available to the respondent, as there was no service, however,the however, the defendant having remained in belief that the defendant willget the response waited, but, to her ill luck, the ex-parte decree was passed. Insuch circumstances, there was a sufficient cause for the non-appearance of thedefendant on the date fixed by the Court, to which the defendant was notnoticed.
15. Therefore, even if the application was filed beyond 30 days fromthe date of the decree, after the knowledge of the ex-parte decree, the application cannot be said to be beyond time. Even assuming, the application wasbeyond time, the facts entitle the defendant to the benefit of Section 5 of the Limitation Act, which are made out in the application under 0.9 Rule 13C.P.C.
16. It is trite that while considering an application under Order 9Rule 9 or 13, generous construction should be placed on the enactment torestore a suit or to set aside ex-parte decree for the default of appearance of aparty, and a party should not be deprived of hearing, unless there is somethingequivalent to misconduct or gross negligence.
17. In case of Collector, Land Acquisition, Ananinag and Another v.Mst. Katiji and Others, AIR 1987 SC 1353, the apex Court while considering acase of condonation of delay on an application Under Section 5 of the Limitaion Act, observed that the approach should be liberal aad justice oriented andfor that laid down six principles; one of them is, when substantial justice andtechnical considerations a repitted against each other, cause of substantialjustice deserves to be preferred for the other side cannot claim to have vestedright in injustice being done because of a non-deliberate delay, as a litigantdoes not get benefit by resorting to delay, in fact he runs a serious risk.
18. As the facts of the case speak, the appellant was honestly intending to defend the case, but remained in the belief that a notice and responsewill be received from the Court; in such circumstances, the interest of justicerequired that even the delay, if any, in filing the application under Order 9Rule 13 C.P.C. ought to have been condoned. Therefore, in my opinion, theCourt below proceeded with erroneous approach and acted illegally in not condoning the delay in filing the application under Order 9 Rule 13 C.P.C.
19. In the result, the appeal is allowed, application under Order 9 Rule13 C.P.C. is allowed, as a result of that the ex-parte decree passed in Civil SuitNo. 24-A/86 is set aside. Now the Trial Court shall proceed with the caseexpeditiously, as it relates to the matrimonial dispute, which has to be decidedexpeditiously, therefore, it is directed that the parties shall appear before theTrial Court on 25.3.1992 for that no fresh notice shall be issued to the parties.The Trial Court shall see that the suit, so filed, is disposed of as far as practicable within a period of six months from 25.3.1992. Record of the Court belowbe sent to the concerned Trial Court. No costs.