1. This petition must be allowed on the short ground that the order passed by the Court below does not appear to be consistent with the provisions of law.
2. It appears that the plaintiff brought a suit for the recovery of money. Summons were issued to the defendant but the latter failed to appear in Court, on 29-7-1952, the plaintiff made an application which is in the following terms :
'In the case noted above, the service of summons on the defendant, aforementioned, is difficult in the ordinary way, as the defendant conceals himself on hearing the news of the summons and intentionally evades the service thereof. It is, therefore, humbly prayed that under the above circumstances, service be effected on the defendant by the beat of drum and by affixing the copy of the summons on the Notice Board of the Court or as the Court may deem proper. Service may be got effected on him under Order 5, Rule 20, Civil P. C.'
3. It was open to the Court either to accept or to reject this application but the order which was actually passed by the learned Subordinate judge is somewhat strange. On the 29th July he directed as follows ;
'The plaintiff has not attempted in getting the service effected. Summonses have been issued many a time. The plaintiff was ordered to take summons 'dasti' but he did not care. Owing to the negligence on the part of the plaintiff further action in this suit is not possible. Hence the suit is dismissed under Order 9, Rule 3, Civil P. C.'
4. The facts outlined above make it quite clear that this order is not consistent with the provisions of Order 9, Rule 3, Civil P. C. That rule empowersthe Court to dismiss a suit when neither party appears in Court when the suit is called on for hearing. In the present case, both the plaintiff and his counsel were present in Court and it cannot, therefore, be said that neither party had appeared in Court. Again, it appears that the suit was dismissed with the object of punishing the plaintiff who had been ordered to take summons 'dasti' but had omitted to do so. It was never the intention of the Legislature that a party to a litigation should be compelled to take summons by hand if he does not wish to do so. On the contrary, the Civil. P. C., has imposed a statutory obligation on the Court to summon the defendant. If the notice sent to him is not served or if the Court is satisfied that the defendant is evading service, it is open to the Court to direct that substituted service shall be effected. If, in spite of the fact that the notice is served on the defendant he fails to appear in Court, it is open to the Court to direct that 'ex parts' proceedings shall be taken against him. The Legislature has cast no duty on the plaintiff to take summons by hand and to have service effected on the defendant although the Court is at liberty to ask the plaintiff to assist the process-server in effecting service.
5. For these reasons, I would accept the petition, set aside the order under revision and direct the Court below to proceed with the case from the stage reached immediately before the passing of the order dated 29-7-1952.
6. The learned counsel for the plaintiff has been directed to appear before the trial Court on 30-11-1953.
7. It is unfortunate that neither the defendant nor his counsel has appeared in this Court.