Bheru Lal Vs. Shanti Lal - Court Judgment

Excerpt:
civil procedure code - order 5, rule 2--summons--service of--summons not accompanied with copy of plaint--held, it is not a completed summons and endorsement of refusal of summons cannot be said to be proper service.;when the summons was not accompained by a copy of plaint the summons was not a complete summons and the endorsement of refusal of such summons cannot be said to be proper service.;civil procedure code - proviso to order 9, rule 13--to get benefit plaintiff must show that defendant had knowledge of date of hearing--no material on record that defendant had knowledge of date of hearing--fact about knowledge not agitated before lower courts--held, plaintiff cannot get benefit of proviso.;in order to get the benefit of this proviso the plaintiff has to show that the defendant had knoweledge of the date of hearing of the suit despite the irregular service. the fact that the defendant had knowledge of the date of the hearing 4-i2-i979 was not agitated before the courts below and, therefore, there is no material on the record to show that the defendant had such knowledge. thus this proviso is of no ovail to the plaintiff.;revision dismissed - industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. if a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. however, the court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. the control test is one of the important tests, but is not to be taken as the sole test. it is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. the other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. a full time worker usually works in a week for 40 hours or more depending on the award or agreement. if a person falls under the definition of workman under section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the i.d. act, and he will be entitled to all the benefits under the said act. a perusal of section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the i.d. act. however, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. the control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under section 2 (s) of the i.d. act. sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. however, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the i.d. act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. if a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the court will have to consider the nature of engagement in both the establishments. however, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - clearly lays down that every summon shall be accompanied by a copy of the plaint or, if no permitted, by a concise .statement. when the summons was not accompanied by a copy of the plaint the defendant was perfectly within his right to have refused to accept the summons and in that event he need not have even looked at the summons to find out its contents.orderk.s. lodha, j. 1. this is a plaintiffs revision against the order of the learned additional district judge, udaipur dt. 17-5-83 accepting the defendant's appeal against the order of the learned civil judge, udaipur dt. 19-2-81 and setting aside the ex parte decree passed against the defendant shanti lal in a suit for recovery of money.2. the first date of hearing fixed in the suit was 13-9-79. the summons sent to the defendant was returned with the report that he had gone to bombay. the case was then adjourned to 4-12-79 and summons was sent both in the ordinary course as also by registered post. the summons sent in the ordinary course was returned with the report that the defendant was at bombay and would not return till 15-12-79. the summons sent by registered post was, however, returned with the endorsement of refusal dt. 20-11-79.3. on 4-12-79 the staff of the court was on strike and, therefore, the case could not be taken up. it was then taken up on 31-12-79 and adjourned to 11-3-80. the parties were not present on that day neither any notices were issued to them for the date of hearing 11 -3-80. however, on 11-3-80 the plaintiff appeared but the defendant did not and in view of the endorsement of refusal on the summons for the-date of hearing 4-10-79 the court recorded that the summons had been served and the defendant having not appeared, he was placed ex parte. ex parte evidence of the plaintiff was recorded on 1-4-80 and decree was passed in his favour on 4-4-80,4. the defendant moved an application on 8-5-80 for getting the ex parte decree set aside. his case was that the summons was never offered to him and he had never refused the same. he had no knowledge of the decree till 8-5-80 when this application for setting aside the same was moved. it was also mentioned that he also did not have any notice of the date of hearing 11-3-80. the plaintiff contested the application. his case was that the defendant had even on the earlier occasion made a wrong report to the effect that the defendant was at bombay whereas he was present at udaipur and the endorsement that the defendant had gone to bombay was in his own hand. it was contended that the summons for 4-12-79 was offered to him but he refused the same. he had thus knowledge of the suit and of the decree and the application for setting aside the decree was barred by time.5. after taking the evidence of the parties and hearing them, the learned civil judge dismissed the defendant's application holding that the defendant had refused the summons sent to him for the date 4-12-79 and had not appeared despite service. on appeal the learned additional district judge, however, was of the view that the summons sent by registered post was not accompanied by a copy of the plaint as required by order 5 rule 2 c.p.c. and, therefore, the surnmons was not a proper summons and the refusal of such summons does not amount to proper service. he was further of the view that as on 4-12-79 the matter was not taken up by the court due to strike, the defendant was entitled to a notice of the next date of hearing but was not given any such notice and, therefore, also, an ex parte decree passed on 4-4-80 was liable to be set aside. accordingly he accepted the appeal and set aside the ex parte decree. the plaintiff has now come up in revision.6. i have heard learned counsel for the parties.7. the learned counsel for the petitioner at the first instance submitted that the endorsement on the summons for the date 13-9-79 to the effect that the defendant had gone to bombay had been made by the defendant himself by impersonating as mohanlal and the matter was enquired into by the learned civil judge and a criminal complaint has been filed against the defendant. the summons for the date of hearing 4-12-79 has been held to have . been refused by the defendant by both courts below. in these circumstances, the learned additional district judge could not have set aside the ex parte decree merely on the ground that the service was not proper because the summons was not accompanied by a copy of the plaint. his second contention was that even if the service was taken to be insufficient not proper, then also, the defendant had already acquired the knowledge of the next date of hearing while refusing the summons dt. 4-12-79 and had sufficient time to appear, therefore, the court had no jurisdiction to set aside the ex parte decree in view of the second proviso to order 9 rule 13 c.p.c.8. i have given my careful consideration to these contentions.9. so far as the first contention goes it appears to be devoid of force. the matter whether the endorsement on the summons for the date 13-9-79 was forged by the defendant in the name of mohanlal, does not appear to have been made a subject matter of controversy in these proceedings, no evidence in this respect has been produced and both courts below have not gone into it. it, therefore, cannot be raised now at this stage before the revisional court. the mere fact that a criminal complaint is alleged to have been filed against the defendant cannot necessarily lead the court to the conclusion that the endorsement was really in the hand of the defendant in the assumed name of mohanlal.10. so far as refusal of the summons for the date 4-12-79 is concerned, it is not in dispute that the summons was not accompanied by a copy of the plaint. order 5 rule 2 c.p.c. clearly lays down that every summon shall be accompanied by a copy of the plaint or, if no permitted, by a concise . statement. the court in this case had not permitted concise statement to be sent along with the summons and thus when the summons was not accompanied by a copy of plaint the summons was not a complete summons and the endorsement of refusal of such summons cannot be said to be proper service.11. now i shall come to the question whether the second proviso to order 9 rule 13 c.p.c. barred the learned additional district judge from setting aside the ex parte decree in this case. it may at once be stated that as a matter of fact it had not been contended in the two courts below that the defendant had'acquired the knowledge of the date of the hearing of the suit while refusing the summons and, therefore, in the first place such a contention cannot be allowed to be raised for the first time in the revision because it is a question of fact whether the defendant had knowledge of the date of hearing of the suit despite' the irregular service of the summons. in the second place, the refusal of these summons by itself does not give rise to a presumption that the defendant had acquired knowledge of date of hearing of the suit specially when the summons was not accompanied by a copy of the plaint. when the summons was not accompanied by a copy of the plaint the defendant was perfectly within his right to have refused to accept the summons and in that event he need not have even looked at the summons to find out its contents. if that was so, he could not have come to know of the date-of the hearing. the learned counsel, however, contended that it was on account of wilful abstinence of the defendant that he may not have come to know of the date of hearing because if he wanted to have knowledge of the date, he could have accepted the summons and if summons was not accompanied with a copy of the plaint he could have appeared before the court and asked for an adjournment. i am unable to accept this contention. the second proviso to order 9 rule 13 cpc does not contemplate that despite the irregular service the ex parte decree would not be set aside if the defendant could have acquired knowledge of the date of the hearing of the suit. what it says is that the court shall not set aside a decree...... if it is atisfied that the defendant had notice of the date of hearing. therefore, in order to get the benefit of this proviso the plaintiff has to show that the defendant had knowledge of the date of hearing of the suit despite the irregular service. he cannot take advantage of this proviso merely by showing that the defendant could have acquired knowledge of the date of hearing if he so chose. now as already stated above the fact that the defendant had knowledge of the date of the hearing 4-12-79 was not agitated before the courts below and, therefore, there is no material on the record to show that the defendant had such knowledge. thus this proviso is of no avail to the plaintiff in this case.12. it will not be out of place here to mention that the learned additional district judge has also relied upon the fact that in any case when the case was not taken up on 4-12-79 due to strike and no notice of the next date of hearing was given to the defendant, the defendant may not have come to know of the decree passed on 4-4-80 in his absence and, therefore, also the decree was liable to be set aside and in my opinion looking to the circumstances of this case this could not be said to be an altogether irrelevant consideration.13. in these circumstances i find no justification for interference with the order of the learned additional district judge.14. for the reasons stated above this revision fails and it hereby dismissed, however, without any order as to costs.15. the record of the case may be sent back to the courts below immediately. the parties are directed to appear before the learned civil judge, udaipur an 6-2-1984.

Judgment:
ORDER

K.S. Lodha, J.

1. This is a plaintiffs revision against the order of the learned Additional District Judge, Udaipur dt. 17-5-83 accepting the defendant's appeal against the order of the learned Civil Judge, Udaipur dt. 19-2-81 and setting aside the ex parte decree passed against the defendant Shanti Lal in a suit for recovery of money.

2. The first date of hearing fixed in the suit was 13-9-79. The summons sent to the defendant was returned with the report that he had gone to Bombay. The case was then adjourned to 4-12-79 and summons was sent both in the ordinary course as also by registered post. The summons sent in the ordinary course was returned with the report that the defendant was at Bombay and would not return till 15-12-79. The summons sent by registered post was, however, returned with the endorsement of refusal dt. 20-11-79.

3. On 4-12-79 the staff of the Court was on strike and, therefore, the case could not be taken up. It was then taken up on 31-12-79 and adjourned to 11-3-80. The parties were not present on that day neither any notices were issued to them for the date of hearing 11 -3-80. However, on 11-3-80 the plaintiff appeared but the defendant did not and in view of the endorsement of refusal on the summons for the-date of hearing 4-10-79 the Court recorded that the summons had been served and the defendant having not appeared, he was placed ex parte. Ex parte evidence of the plaintiff was recorded on 1-4-80 and decree was passed in his favour on 4-4-80,

4. The defendant moved an application on 8-5-80 for getting the ex parte decree set aside. His case was that the summons was never offered to him and he had never refused the same. He had no knowledge of the decree till 8-5-80 when this application for setting aside the same was moved. It was also mentioned that he also did not have any notice of the date of hearing 11-3-80. The plaintiff contested the application. His case was that the defendant had even on the earlier occasion made a wrong report to the effect that the defendant was at Bombay whereas he was present at Udaipur and the endorsement that the defendant had gone to Bombay was in his own hand. It was contended that the summons for 4-12-79 was offered to him but he refused the same. He had thus knowledge of the suit and of the decree and the application for setting aside the decree was barred by time.

5. After taking the evidence of the parties and hearing them, the learned Civil Judge dismissed the defendant's application holding that the defendant had refused the summons sent to him for the date 4-12-79 and had not appeared despite service. On appeal the learned Additional District Judge, however, was of the view that the summons sent by registered post was not accompanied by a copy of the plaint as required by Order 5 Rule 2 C.P.C. and, therefore, the surnmons was not a proper summons and the refusal of such summons does not amount to proper service. He was further of the view that as on 4-12-79 the matter was not taken up by the Court due to strike, the defendant was entitled to a notice of the next date of hearing but was not given any such notice and, therefore, also, an ex parte decree passed on 4-4-80 was liable to be set aside. Accordingly he accepted the appeal and set aside the ex parte decree. The plaintiff has now come up in revision.

6. I have heard learned counsel for the parties.

7. The learned counsel for the petitioner at the first instance submitted that the endorsement on the summons for the date 13-9-79 to the effect that the defendant had gone to Bombay had been made by the defendant himself by impersonating as Mohanlal and the matter was enquired into by the learned civil judge and a criminal complaint has been filed against the defendant. The summons for the date of hearing 4-12-79 has been held to have . been refused by the defendant by both Courts below. In these circumstances, the learned Additional District Judge could not have set aside the ex parte decree merely on the ground that the service was not proper because the summons was not accompanied by a copy of the plaint. His second contention was that even if the service was taken to be insufficient not proper, then also, the defendant had already acquired the knowledge of the next date of hearing while refusing the summons dt. 4-12-79 and had sufficient time to appear, therefore, the Court had no jurisdiction to set aside the ex parte decree in view of the second proviso to Order 9 Rule 13 C.P.C.

8. I have given my careful consideration to these contentions.

9. So far as the first contention goes it appears to be devoid of force. The matter whether the endorsement on the summons for the date 13-9-79 was forged by the defendant in the name of Mohanlal, does not appear to have been made a subject matter of controversy in these proceedings, no evidence in this respect has been produced and both Courts below have not gone into it. It, therefore, cannot be raised now at this stage before the revisional Court. The mere fact that a criminal complaint is alleged to have been filed against the defendant cannot necessarily lead the Court to the conclusion that the endorsement was really in the hand of the defendant in the assumed name of Mohanlal.

10. So far as refusal of the summons for the date 4-12-79 is concerned, it is not in dispute that the summons was not accompanied by a copy of the plaint. Order 5 Rule 2 C.P.C. clearly lays down that every summon shall be accompanied by a copy of the plaint or, if no permitted, by a concise . statement. The Court in this case had not permitted concise statement to be sent along with the summons and thus when the summons was not accompanied by a copy of plaint the summons was not a complete summons and the endorsement of refusal of such summons cannot be said to be proper service.

11. Now I shall come to the question whether the second proviso to Order 9 Rule 13 C.P.C. barred the learned Additional District Judge from setting aside the ex parte decree in this case. It may at once be stated that as a matter of fact it had not been contended in the two courts below that the defendant had'acquired the knowledge of the date of the hearing of the suit while refusing the summons and, therefore, in the first place such a contention cannot be allowed to be raised for the first time in the revision because it is a question of fact whether the defendant had knowledge of the date of hearing of the suit despite' the irregular service of the summons. In the second place, the refusal of these summons by itself does not give rise to a presumption that the defendant had acquired knowledge of date of hearing of the suit specially when the summons was not accompanied by a copy of the plaint. When the summons was not accompanied by a copy of the plaint the defendant was perfectly within his right to have refused to accept the summons and in that event he need not have even looked at the summons to find out its contents. If that was so, he could not have come to know of the date-of the hearing. The learned counsel, however, contended that it was on account of wilful abstinence of the defendant that he may not have come to know of the date of hearing because if he wanted to have knowledge of the date, he could have accepted the summons and if summons was not accompanied with a copy of the plaint he could have appeared before the court and asked for an adjournment. I am unable to accept this contention. The second proviso to Order 9 Rule 13 CPC does not contemplate that despite the irregular service the ex parte decree would not be set aside if the defendant could have acquired knowledge of the date of the hearing of the suit. What it says is that the court shall not set aside a decree...... if it is atisfied that the defendant had notice of the date of hearing. Therefore, in order to get the benefit of this proviso the plaintiff has to show that the defendant had knowledge of the date of hearing of the suit despite the irregular service. He cannot take advantage of this proviso merely by showing that the defendant could have acquired knowledge of the date of hearing if he so chose. Now as already stated above the fact that the defendant had knowledge of the date of the hearing 4-12-79 was not agitated before the courts below and, therefore, there is no material on the record to show that the defendant had such knowledge. Thus this proviso is of no avail to the plaintiff in this case.

12. It will not be out of place here to mention that the learned Additional District Judge has also relied upon the fact that in any case when the case was not taken up on 4-12-79 due to strike and no notice of the next date of hearing was given to the defendant, the defendant may not have come to know of the decree passed on 4-4-80 in his absence and, therefore, also the decree was liable to be set aside and in my opinion looking to the circumstances of this case this could not be said to be an altogether irrelevant consideration.

13. In these circumstances I find no justification for interference with the order of the learned Additional District Judge.

14. For the reasons stated above this revision fails and it hereby dismissed, however, without any order as to costs.

15. The record of the case may be sent back to the courts below immediately. The parties are directed to appear before the learned Civil Judge, Udaipur an 6-2-1984.