1. This is an application in revision against an order of Mr. Banwari Lai, Sub-Judge Second Class, Rohtak, dated 18th April 1945, dis. missing the plaintiff's suit for pre-emption under the provisions of Order 9, Rule 5, Civil P.C. This rule reads thus:
Where, after a summons has been issued to the defendant or to one of several defendants, and returned unserved, the plaintiff fails, for a period of three months from the date of the return made to the Court by the Officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant....2. In order to make this rule applicable to the circumstances of a particular case, it has to be established under the provisions of Order 5, Rule 1 and 2, that a summons was issued to that defendant and that summons was accompanied by a copy of the plaint. As regards the contents of a summons these have been laid down in Appendix B, form of the Code, and it has been held that it is not enough that the defendant is generally made aware of the institution of a suit against him; each defendant is entitled to a copy of the summons with a copy of the plaint annexed to it.
3. What happened in the present case was that the suit for pre-emption was instituted on 19th December 1944 by the plaintiff, who is an agnate of the vendor, in respect of a sale made by him on 8th April 1944 of 5 bighas 11 biswas of land for the sum of Rs. 4000 in favour of defendants 1 to 6. On 2nd January 1945 a summons was issued for appearance of the defendants on 3rd February 1945. This summons was written on a printed form which has been prescribed for use in cases where an application is made for the setting aside of a decree passed ex parte. Certain parts of this printed form were scored out and on the top of it was written that this summons was for settling issues. The summons watt addressed to the six defendants jointly and not, to each one of them individually, and in the concluding portion it states as follows:
By means of this summons you are informed under, the provisions, of Order 9, Rule 14, Civil P.C., 1908, that you; should appear on 3rd February 1945 for the hearing of the application.This is the operative part of the summons and it calls upon all the defendants to appear on 3rd February 1945, the date fixed for the hearing of an application to set aside an ex parte decree.
4. This summons does not comply with the form prescribed by the Legislature and cannot; be described as a summons as contemplated by Order 5, Rule 1 and 2. As required by the provisions of law, a separate summons to each of the defendants accompanied by a copy of the plaint was never issued.
5. On 8th January 1945 the serving offices reported that two of the defendants had been?, personally served and a copy of the plaint had been given to them. It was not said that a copy of the summons had also been given to each one of them. Regarding four of the defendants the; report is that they were in the army and that the other defendants declined to furnish their proper addresses. The affidavit of the serving officer is, also in a very cryptic form and has not been recorded either in the prescribed form or in the? prescribed manner.
6. On 3rd February 1945 the case came up for hearing and it was ordered that the plaintiff: should furnish addresses of defendants who had; not been served. 19th February 1945 was fixed as the next date of hearing. On that date the suit was stayed and the case was adjourned to 18th' April 1945 and it was ordered that the plaintiff should make an application to the Court about the correct addresses of the defendants. By the date fixed the plaintiff failed to furnish the addresses of the defendants with the result that his suit was dismissed under the provisions of Order 9, Rule 5.
7. In revision it was contended by Mr. Shamair Chand that the penal provisions of Rule 5 of. Order 9 could not be used in this case as it had not been proved that a summons was issued to the, defendants whose addresses had not been correctly furnished by the plaintiff and that as no summons was issued, the learned Judge could not dismiss the suit under the provisions of this rule whatever other penalties he might have been able to inflict on the plaintiff. It seems to me that this contention has force. As pointed out above no proper summons was ever issued to the defendants by the Court. The summons that was issued was not a summons which according to law has to issue before the penal provisions of the Code can be used to dismiss a plaintiff's suit. I am, therefore, of the opinion, that the learned Sub-Judge had no jurisdiction to dismiss the plaintiff's suit under Rule 5, because it cannot be said in this case that a summons had been issued to the defendants in the manner prescribed by law and that such a summons had returned unserved. That being so, there was no failure on the plaintiff's part for three months from the date of return to apply for the issue of a fresh summons and hence the Court had no jurisdiction to order that the suit be dismissed as against such defendants.
8. Mr. Fakir Chand Mittal contended that in substance the provisions of Rule 5 of Order 9 had been complied with. He argued that the summons that was jointly issued to all of the defendants with copies of the plaint annexed was a sufficient compliance with the provisions of law; that the report on the back of the summons showed that two of them were served and they refused to furnish addresses of the others; that the plaintiff had sufficient time to make an application to the Court for issue of a fresh summons or to take action under Order 5, Rule 20, Civil P.C., and that as he did nothing of the sort, in these circumstances the Court was justified in passing an order under the provisions of Rule 5 of Order 9. I am unable to accede to this contention of the learned counsel, because substantial compliance with the provisions of the procedural rule does not necessarily entail the penalties prescribed by them. Before the penalty provided in a rule can be enforced it must be shown that the conditions precedent to it have been fulfilled according to the letter of the law and not according to its spirit. In this case the letter of the law has not been complied with and, therefore, the penal consequences can not be imposed on the plaintiff.
9. Mr. Mittal with considerable force contended that in any case I should not exercise my revisional jurisdiction in this case because the plaintiff pre-emptor has been guilty of default and has not taken prompt action as required by law in furnishing the addresses of the defendants and as by this stage his suit is barred by limitation, therefore, I should stay my hand. This contention though very plausible, I am not prepared to accept in the present case. When the Sub-Judge has imposed the penalty of a procedural rule against the plaintiff without complying with the various provisions of law which should have been complied with before this penalty could be inflicted, the question is one of jurisdiction and where without jurisdiction a suit has been dismissed, it is the duty of this Court as a Court of revision to correct the error of the trial Judge. As pointed out several times by me and by various Judges of different Courts, Courts do not exist merely for throwing out suits on technical grounds but their duty is to administer justice and to decide cases on the merits. It was quite easy for the Sub-Judge in this case to order fresh summons to issue on the addresses furnished by the plaintiff or to ask him to make an application under Order 5, Rule 20, Civil P.C., and then proceed with the case. As pointed out by Mr. Shamair Chand, who is perhaps one of the oldest gentlemen of the Bar, the provisions of Order 9, Rule 5, have seldom been used by the Courts in this province and it is one of those rare cases where without proper safeguards those provisions have been brought into play. In this situation, I must exercise my revisional jurisdiction and set aside this order.
12. For the reasons given above I allow this application in revision, set aside the dismissal order of the suit and remit the case to the Sub-Judge for proceeding with it in accordance with law. The plaintiff will, however, pay the costs of these proceedings throughout. The trial Court will fix a date for the next hearing of the case and issue notice to the defendants. The plaintiff has been directed to appear there on 4th October 1948.