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Naginbhai Devshibhai Sanghvi Vs. Ramniklal Paun and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1982)1GLR304
AppellantNaginbhai Devshibhai Sanghvi
RespondentRamniklal Paun and anr.
Excerpt:
.....or postal charges (if any) chargeable for such service, the court may make an order that the suit be dismissed. in the instant case, the facts set out earlier clearly disclose that even after the court had granted the petitioner's application for payment of process fees the petitioner failed to pay the same and hence the court dismissal the suit. ) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for such failure as is referred to in rule 2, the court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. now, order 9 rule 5 provides that where, after a summons has been issued to the defendant or to one of several defendants, and returned..........were issued on the opponents but they were returned unserved. the petitioner once again paid the process fees for the service of the summonses on 24th november 1978. the summonsee were, however, returned unserved for want of proper address and the time for service being short. the summonses were, therefore, reissued by the court but once again they returned unserved. thereupon the petitioner filed on application. exhibit 8, on 23rd february 1979, to permit him to pay the process-fees for the service of the summonses, which application was granted. however, the petitioner failed to pay the process fees. on the next date, that is, on 16th march 1979, another application, exhibit 9, was given for permission to pay the process fees which was granted and the returnable date for the service.....
Judgment:

A.M. Ahmadi, J.

1. The petitioner instituted a Suit No. 36 of 1978 in the Court of the learned Civil Judge (Senior Division), Amreli, to recover a sum of Rs. 18,000/ from the opponents, being the purchase price of an Ambassador Car. The summonses were issued on the opponents but they were returned unserved. The petitioner once again paid the process fees for the service of the summonses on 24th November 1978. The summonsee were, however, returned unserved for want of proper address and the time for service being short. The summonses were, therefore, reissued by the Court but once again they returned unserved. Thereupon the petitioner filed on application. Exhibit 8, on 23rd February 1979, to permit him to pay the process-fees for the service of the summonses, which application was granted. However, the petitioner failed to pay the process fees. On the next date, that is, on 16th March 1979, another application, Exhibit 9, was given for permission to pay the process fees which was granted and the returnable date for the service of the summonses was fixed on 3rd April 1979. However, once again the petitioner defaulted in paying the process-fees. On 3rd April 1979 yet another application, Exhibit 10, was given by the petitioner for acceptance of process fees but the learned Judge rejected that application and by his order of even date dismissed the suit. After the dismissal of the suit, the petitioner preferred an application, being Civil Miscellaneous Application No. 19 of 1979, under Order 9 Rule 4 of the Code of Civil Procedure for setting aside the dismissal order and for restoration of the suit on file. The learned Judge came to the conclusion that the initial order being one under Order 9 Rule 5 of the Code, such an application was not maintainable. He, therefore, rejected the said application with costs on 17th November 1979 and hence this Revision Application.

2. Order 9 Rule 2 of the Code of Civil Procedure provides that where on the day fixed in the summons for the defendant to appear and answer the suit 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. The proviso is not material for our purpose. Therefore, the dismissal of a suit can be ordered under this Rule if the plaintiff fails to pay the process-fees chargeable for the service of the summons on the defendant. In the instant case, the facts set out earlier clearly disclose that even after the Court had granted the petitioner's application for payment of process fees the petitioner failed to pay the same and hence the Court dismissal the suit. Under Order 9 Rule 4, where a suit is dismissed under Rule 2, the plaintiff may (subject to the law of limitation.) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in Rule 2, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. On a plain reading of this Rule it becomes evident that if a suit is dismissed under Rule 2 for non-payment of process-fees, the plaintiff has two options, namely : (i) to bring a fresh suit subject to the law of limitation: or (ii) to apply for an order to set aside the dismissal on sufficient cause being shown for the default in payment of the process-fees. In the instant case, the petitioner chose the second alternative namely, to apply for restoration of the suit as, in his opinion, he had sufficient reason for not paying the process-fees. The learned trial Judge, however, rejected the application on the ground of maintainability holding that the suit was dismissed under Order 9 Rule 5 of the Code of Civil Procedure. Now, if we refer to the order passed by the learned trial Judge at the time of the dismissal of the suit, we find that the learned trial Judge was not sure whether the provisions of Rule 2 or Rule 5 of Order 9 applied in the facts and circumstances of the case. He, therefore, ordered 'I hereby dismiss this suit for want of process-fees under Order 9 Rule 2 and 5 of C.P.C. with no order as to costs.'. It becomes immediately clear from this order that the suit was dismissed for nonpayment of process-fees. It is also clear that the learned Judge referred to both Rule 2 and Rule 5 of Order 9 while dismissing the suit. However, while dealing with the application for restoration of the suit under Order 9 Rule 4, the learned Judge observed that he had in fact dismissed the suit under Order 9 Rule 5 and not under Order 9 Rule 2 of the Code. This observation, however, is not consistent with the order passed by the learned trial Judge while dismissing the suit. Now, Order 9 Rule 5 provides that 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 one month from the date of the return, to apply for the issue of a fresh summons, the Court may make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that he had failed after using his best endeavours to discover the residence of the defendant who has not been served, or such defendant is avoiding service of process, or there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit. This Rule applies where after the summons has been returned unserved the plaintiff fails to apply for fresh service for a period of one month from the date of the return of the summons. In the instant case, the petitioner bad applied for the issuance of a fresh summons and had sought the permission of the Court to pay the process-fees. The Court had granted such permission on 24th November 1978, 23rd February 1979 and 16th March 1979 but the petitioner failed to pay the process fees. It was for that reason that the suit came to be dismissed on 3rd April 1979. It is, therefore, obvious that the suit was dismissed for non-payment of process fees and not for the failure on the part of the petitioner to apply for fresh summons. It is, therefore, obvious that the suit was in fact dismissed under Order 9 Rule 2 of the Code of Civil Procedure and not under Order 9 Rule 5 of the Code and, therefore, the learned trial Judge was clearly in error in holding that the suit was dismissed under the latter provision. Once it is found that the suit was dismissed under Order 9 Rule 2 of the Code, the provisions of Order 9 Rule 4 apply and an application for restoration of the suit under that provision is clearly maintainable. The learned trial Judge was, therefore, in error in holding that the application preferred by the petitioner was not maintainable because the order of dismissal of the suit was passed under Order 9 Rule 5 of the Code of Civil Procedure. Of course, in order to secure restoration, the petitioner will have to show sufficient cause for failure to pay the process-fees, but that is a matter which the learned trial Judge will have to go into once it is found that the application under Order 9 Rule 4 of the Code of Civil Procedure was maintainable.

3. In the result this Revision Application is allowed. The dismissal of the petitioner's application as not maintainable is set aside and the learned trial Judge is directed to deal with and dispose of the application on the footing that it is maintainable under Order 9 Rule 4 of the Code of Civil Procedure and decide whether or not in the circumstances of the case he would direct restoration of the suit. The rule is made absolute accordingly with no order as to costs.


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