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Subbiah thevar Vs. Pichai Nadar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1861 of 1950
Judge
Reported inAIR1954Mad73; (1953)1MLJ517
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 5
AppellantSubbiah thevar
RespondentPichai Nadar
Appellant AdvocateR. Kesava Iyengar and ;K. Parasaran, Advs.
Respondent AdvocateS.R. Satagopal, Adv.
Cases ReferredDecruz v. Mrs. Pitts
Excerpt:
- .....called on 21-7-1950. the plaintiff lived in a remote village and therefore his vakil applied for time. time was given till 25-7-1950. on that day the plaintiff did not appear and the vakil had not been furnished with funds to enable him to take out steps. therefore the suit was dismissed on 25-7-1950. on 31-7-1950 an application was filed for setting aside this order of dismissal of the suit. the learned subordinate judge declined. hence this revision petition.3. when the civil revision petition was admitted, i find a note had been made by viswanatha sastri j:'the court below does not give any dates to show that there was default on the part of the plaintiff. when was summons due? was there-a default for three months? why not consider and refer to these matters in the judgment'.the.....
Judgment:

Ramaswami, J.

1. This is a civil revision petition filed against the order made by the learned Subordinate Judge of Devakottai in I. A. No. 131 of 1950 in S. C. S. No. 75 Of 1950.

2. The facts are: The plaintiff filed a suit for Rs. 558-14-0 on a promissory note for Rs. 500. The suit was filed on 6-4-1950. This was taken on file and summonses were directed for 14-6-1950; Summons through court and post was ordered by 5-7-1950. The defendant was not served. It was adjourned to 18-7-1950. Substituted service was ordered by 20-7-1950. The suit was called on 21-7-1950. The plaintiff lived in a remote village and therefore his vakil applied for time. Time was given till 25-7-1950. On that day the plaintiff did not appear and the vakil had not been furnished with funds to enable him to take out steps. Therefore the suit was dismissed on 25-7-1950. On 31-7-1950 an application was filed for setting aside this order of dismissal of the suit. The learned Subordinate Judge declined. Hence this revision petition.

3. When the civil revision petition was admitted, I find a note had been made by Viswanatha Sastri J:

'The Court below does not give any dates to show that there was default on the part of the plaintiff. When was summons due? Was there-a default for three months? Why not consider and refer to these matters in the judgment'.

The point for determination is whether the learned Subordinate Judge should have dismissed the suit on 25-7-1950 instead of awaiting for a period of three months under Order 9, Rule 5, Civil P. C. Order 9, Rule 5 says:

'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 defendants.. ...'

Then Order 9, Rule 5 proceeds to say that the plaintiff should be given an opportunity to come forward and explain why within this there months-he was not able to take steps and when he is able to satisfy the Court that he was unable to do so, for the reasons set out in Clauses (a), (b) and (c), the Court may also extend the time.

4. It has been laid down in -- 'Venkatarama v. Marudachala' : AIR1931Mad795 (A),

'that by force of Section 141, the provisions of Order 9 and Order 17 apply to such a proceeding and the Court before dismissing the application should satisfy itself that the terms of Order 9, Rule 5 are complied with and that the Court was not at liberty to dismiss the application in respect of any of those defendants who had been in fact served and that even in the case of defendant 2 who was not served it did not allow sufficient time for a further application to be made before passing the order of dismissal and the order was not Justified by law and was ultra, vires; -- 'Thakur Prasad v. Fakirullah', 17 All 106 (PC) (B); -- 'Timmaraju v. Narasimha Raju', AIR 1928 Mad 522 (C) and -- 'Nemichantf Sowcar v. Kesari Mull', AIR 1929 Mad 31 (D).............,'

The reason for this three months, time is given, in the judgment of the Patna High Court in --'Decruz v. Mrs. Pitts', : AIR1933Pat557 (E).

'Order 9, Rule 5 gives the Court the power to dismiss the suit if after a summons has been, issued to the defendant and returned unserved the plaintiff fails for a period of three months to apply for the issue of a fresh summons, unless within that time the plaintiff shows a cause of extending the time.'

The order dismissing the suit before the expiry of three months to which the plaintiff is entitled for tracing out the defendant is premature and irregular. In other words, the three months, time represents a rough and ready period for allowing the plaintiff to exert himself to find out the correct address and mode of getting the summons served on the defendant and avoid premature disposal constituting only a statistical glory, but bringing total dissatisfaction to litigants.

5. Therefore the order of the lower Court cannot be supported in this case and it has got to-be set aside and is hereby set aside and in the circumstances without costs.

6. The learned Subordinate Judge is directed to restore the suit to its original number and dispose of it according to law.


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