Nainar Sundaram, J.
1. The plaintiff in O. S. No. 380 of 1972, on the file of the District Munsif of Sattur, is the petitioner in this revision. The respondents herein are the defendants in the said suit. That suit was instituted by the plaintiff against the defendants for the recovery of a sum of Rs. 2,405 being the damages sustained by the plaintiff on account of the accident on 18-7-1971, involving the bus owned by the plaintiff and the lorry owned by the first defendant. According to the plaintiff, the accident occurred on account of the rash and negligent driving of the driver of the lorry owned by the first respondent. The second defendant is the insurance company with which the lorry belonging to the first defendant was insured. It seems that summons could not be served on the first defendant in spite of the fact that, batta was paid thrice and there was a failure on the part of the plaintiff to apply for substituted service of the summons on the first defendant. This necessitated the court below to pass orders, dismissing the suit as against the first defendant on 7-12-1972.
2. It is the case of the plaintiff that it was not aware of such orders passed by the court below and this came to the knowledge of the plaintiff only on 24-7-1973. The plaintiff filed I. A. No. 789 of 1973 in the court below, under Order 1,Rule 10 (2) C.P.C. to implead the first defendant against whom the suit was dismissed for default, once again a party defendant to the suit.
3. Sri E. Padmanabhan, learned counsel appearing for the petitioner, submits that the court below has not properly appreciated and applied the principles under Order 1, Rule 10 (2) C.P.C. and even though the suit as against the first defendant, was dismissed under Order 9, Rule 5 C.P.C., it is still open to the court in the interests of justice and in exercise of the powers under Order 1, Rule 10 (2) C.P.C. to add the first defendant as a party defendant, so that the rights of parties can be adjudicated upon comprehensively in the same suit. I find that there is substance in the submission made by the learned counsel for the petitioner. Order 9, Rule 5 C.P.C. contemplates the dismissal of the suit against the defendant or defendants concerned, where there is a failure on the part of the plaintiff to apply for issue of fresh summons. Order 9, Rule 5 (2) C.P.C. states in such a case, the plaintiff may, subject to the law of limitation, bring a fresh suit. In the case of dismissal of the suit under Order 9, Rule 5 C.P.C., there is no specific provision in that Order which would enable the plaintiff to have the order of dismissal set aside on sufficient cause being shown for not applying for the issue of fresh summons to the defendant or defendants concerned. It is only in this context, we have to construe the powers of the court, under Order 1, Rule 10 (2) C.P.C. If, in fact, the presence of the defendant is necessary for a proper adjudication of the questions that would arise for consideration in the suit, the court will have ample power to implead the very same defendant as a party defendant to the suit by exercise of powers under Order 1, Rule 10 (2) C.P.C, The exercise of such powers will depend upon the facts and circumstances of the case.
4. In the present case, the suit is one for recovery of damages sustained in an accident. The first defendant is the owner of the lorry and the second defendant is the Insurance Co. It may not be proper and comprehensive adjudication of the question that may come up for consideration, if the suit is to be decided in the absence of the first defendant. Even assuming that the plaintiff can institute a fresh suit as contemplated under Order 1, Rule 10 (2) (sic) (Order 9, Rule 5 (2)?) C.P.C.,there is a likelihood that conflicting decisions may be rendered in the suits.
5. A similar question arose for consideration before the Calcutta High Court, and in Setabi Dei v. Ramdhani Shaw, : AIR1966Cal60 , Mallick J. held that there is no reason why, power under Order 1 Rule 10 (2), could not be exercised in appropriate cases by adding a person as a party against whom an order under Order 9, Rule 5, C P. C. has been passed previously. I appreciate the view taken by the learned Judge and adopt the same and in my opinion, even in cases where the suit has been dismissed as against the defendant or defendants concerned under Order 9, Rule 5, C.P.C., yet the court may have the power to implead the very same defendant or defendants concerned by exercise of power under Order 1 Rule 10 (2) C. P. C. to give a complete and comprehensive adjudication of the questions that would arise for consideration in the suit. In the present case, the court below was under the impression that the order of dismissal passed earlier against the first defendant, admittedly under Order 9, Rule 5, C. P. C., can be set aside by an application. This approach is not tenable on the facts of the case. There is a warrant for adding the first defendant again as a party defendant to the suit. Since the correct principles have not been applied by the court below, to the facts of the present case, I am inclined to allow this revision. Hence, this revision is allowed, and the order of the court below is set aside and the application I. A. No. 779 of 1973 in O.S. 380 of 1972 on the file of the District Munsif, Sattur, will stand allowed and the court below will proceed with the suit after adding the first defendant as a party defendant to the suit. There will be no order as to costs in this revision.