1. This regular second appeal arises in the following circumstances. Sadhu Singh son of Diwan Singh sold, as per registered Sale deed, dated August 5, 1966, 20 Kanals 133/4 Marlas of land which was his 1/4th share in an area of 82 Kanals 15 Marlas situated in village Talhan, tehsil and district Jullundur. The sale was in favour of Jawala Singh defendant-respondent 1 and for an ostensible consideration of Rupees 17067.19. Sohan singh and Karnail Singh sons of Lachhman Singh son of Diwan Singh instituted a suit for pre-emption on August 1, 1967. Since the sale of land was out of a joint khata he impleaded other co-sharers. Banta Singh, Lachhman Singh, Tara Singh, Kewal Singh and Phuman Singh as pro forma defendants 3 to 7. Sadhu Singh, vendor was impleaded as defendant 2. Summonses for settlement of issues were directed to issue to the defendants for October 11, 1967. On payment of process fee. Lachhman Singh, Tara Singh and Phuman Singh defendants did not appear despite service and ex parte proceedings were taken against them on October 11, 1967. Jawala Singh, vendee appeared through his wife Smt. Kartar Kaur. The remaining three defendants including Sadhu Singh vendor had not been served. The plaintiff was ordered to give their correct addresses and also to deposit fresh process fee. The case was come up on November 29, 1967.
2. As service had not been effected on some defendants summonses were again ordered to issue for January 5, 1968 on payment of process fee within three days. The case was adjourned to January 5, 1968. Defendants 2, 3 and 6 were again not served and fresh summonses were to issue for February 21, 1968 on payment of process fee and filing of the correct addresses. It appears that the plaintiff did not this time deposit the process fee within the prescribed time. The trial court on February 21, 1968, passed the following order:--
'P. F. not filed by the plaintiff. The suit is, therefore, dismissed under order 17, Rule 3. Civil Procedure code.'
3. The plaintiff took an appeal to the District Judge, Jullundur, who dismissed the same on October 29, 1968. He took the view that the suit was adjourned from time to time on account of the non-service of defendant-respondents and that since the plaintiff did not pay the process fee within the prescribed time as ordered on January 5, 1968, the suit had been rightly dismissed under Order 17, Rule 3. Civil Procedure code. The plaintiff has come to this court in second appeal.
4. Before the Motion Bench, Mr. R. S. Dhillon, learned counsel for the appellant cited Ram Nath Kalia v. Paul Singh ILR (1959) Punj 596=(AIR 1959 Punj 257) and the learned Judge admitted the appeal mainly on the basis of this citation. It is now strenuously urged that the trial court was not justified in dismissing the suit when only the proforma defendants had not been served and that it was incumbent on the court to have disposed of the suit on merits. This argument is based on the assumption that the impugned order of the trial court was in substance of passed under order 17. Rule 3, Order 17. Rule 3, Civil Procedure Code, reads as under:--
'Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith.'
5. The only default alleged in the instant case is that the plaintiff did not pay process fee within three days as ordered on January 5, 1968. The rule which provides for dismissal of suits where summonses are not served in consequences of the plaintiff's failure to pay process fee or postal charges is only Rule 2 of Order 9, Civil Procedure Code, and it is in the following terms'-
'Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, the court may make an order that the suit be dismissed: Provided that no such order shall be made although the summons has not been served upon the defendant. If on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent.'
This rule relates to the first hearing of the suit but is made applicable to adjourned hearings as well by virtue of order 17, Rule 2. Civil Procedure Code which too, it is necessary to reproduce here under the facility of reference'-
'Where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it 'thinks fit'.
Admittedly failure of the unreserved defendants to be present on February 21, 1968, was due to the omission of the plaintiff to pay process fee as ordered on January 5, 1968, when some of the defendants did not appear on 21st February 1968. The court had an option under Order 17. Rule2, Civil Procedure Code to dispose of the suit in a mode contemplated in that behalf by Order 9, of the Civil Procedure Code, Order 9, Rule 2 specifically provides for the cases where the plaintiff has not deposited process fee to enable the defendant or defendants to appear on the date of hearing. In case of an adjourned hearing by virtue of Order 17, Rule 2, Civil Procedure Code the provisions of order 9. Rule 2, are made applicable. The courts below took the view that the order must be considered to have been passed under Order 17, Rule 3. Civil Procedure Code, but in my opinion this was not a correct approach, it is the substance of the order and the circumstances in which it is made that have to be taken into consideration in order to determine as to under what provisions of law the order was passed or must in law be deemed to have been passed, and no hard and fast rule can be laid down nor does it matter as to what rule has been cited by the Court passing the order. In the infant case, the inevitable conclusion is that the order must be deemed to have been passed under Order 17, Rule 2 read with Order 9, Rule 2 and not under Order 17, Rule 3 Civil Procedure Code. It was a failure of the plaintiff to pay process fee for which action could be taken only under Order 9,. Rule 2 of the Code of Civil Procedure, and the order of dismissal of suit has, therefore, been erroneously held to have been passed under Order 17, Rule 3, Civil Procedure Code. From the mere fact that the order of January 5, 1968 gave a period of three days to the plaintiff to pay the process fee. It does not follow that time had been granted to him to perform any act necessary for the progress of the suit within the meaning of Order 17, Rule 3, Civil Procedure Code.
6. The next question that survives for consideration is whether the suit should have been dismissed against all the defendants or only against those who had not been served, In my opinion the whole suit could not be dismissed and the trial court acted without jurisdiction in doing so. A plain reading of Order 9, Rule 2 leaves no doubt that it contemplates dismissal of the suit only against that defendant who is not served in consequences of the failure of the plaintiff to pay process fee or postal charges, chargeable for the service of the said defendant. No decision of this Court has been cited before me but I am fortified, in the view taken by me by a Single Bench Judgment of the Nagpur High Court in Krishnarao Bapurao v. Wamanrao Ganpatrao. AIR 1950 Nag 188, which followed two judgments of the Patna High Court reported as Surendra Mohan v. Gena Sardar. AIR 1920 Pat 820, and Ramanand Singh v. Chandrama Singh. AIR 1921 Pat 422(1) and one judgment of Oudh High Court in Mt. Ganesh Kuer v. Sheo Raj Singh, AIR 1937 Oudh 502.
7. Mr. Naginder Singh, learned counsel for the respondents cited solitary judgment of the Bombay High Court in Shek Abas v. Ibrahimji, (1868)5 Bom HCR 188, wherein a different view was taken but with utmost respect I find myself unable to accept the reasoning of that judgment. The view contrary to what I have taken is likely to lead to unreasonable results. It could not have been intended by the Legislature that no matter that the necessary parties are before the court the suit must still be dismissed for the failure of the plaintiff to deposit process fee to get service effected on those defendants, who may not be necessary or even proper parties. It does sometime happen that as a matter of abundant caution and to avoid the possibility of any objection being raised at the trial, persons are impleaded as defendants who are not necessary to be so impleaded. What are the consequences of the non-joinder of the parties will be determined by the Court in each case, but the dismissal of the suit is permissible only against the defendant who has not been served because of the default of the plaintiff.
8. Mr. Naginder Singh lastly contended that if the order is taken to be under Order 9, Rule 2, Civil Procedure Code, no appeal was competent and the only course open to the plaintiff was to have made an application to the trial court to have dismissal set aside on showing sufficient cause for his failure to pay the process fee or to move this court in revision. The court of first appeal in the present case proceeded on the basis that the order of the trial court has been passed under Order 17, Rule 3 and it was on this score that the appeal was entertained. No doubt the plaintiff as an aggrieved party could proceed under Order 9 for restoration of the suit but it was open to him to file an appeal as well since the order purports to have been passed under Order 17, Rule 3, Civil Procedure code though erroneously. The right of appeal depends on what the court actually does and not what it should have done. It is an elementary rule of justice that a party cannot be made to suffer for the mistaken of a court. A similar situation arose in Ganga Das v. Mst. Gopli AIR 1960 Raj 245 and it was held that in the circumstances like the present one an appeal could lie. At any rate even if the appeal is not competent it is a fit case in which I would exercise the revisional powers of this court and treat the appeal as a revision because the order of the trail court dismissing the entire suit was without jurisdiction. In the result the appeal is allowed and the order of the appellate court affirming that of the trial court is set aside and the case is remanded to the trial court for disposal in accordance with law. There is no order as to costs.
9. Case remanded.