R KAPINIPATHI RAO Vs. ABDUL AZIZ KHAN

JUDGEMENT

(1.) This is a revision petition against the order passed by the District Judge, Bangalore, in Miscellaneous Case No. 144 of 50-51, on the file of his Court directing summons to be issued to the respondent in the case, before setting aside the order of dismissal.

(2.) Order IX Civil Procedure Code contemplates dismissal of suits for four different reasons. In the first place under Rule 2 of order IX, a suit may be dismissed on the day fixed in the summons, for the appearance of the defendant where summons has not been served on the defendant in consequence of the failure of the plaintiff to pay Court-fee or postal charges chargeable for such service. Then a suit may be dismissed under Rule 3, when both plaintiff and defendant are absent. A suit may be dismissed under Rule 5 where, alter 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 fixed in such summons for the defendant to appear to apply for the issue of fresh summons. Lastly the suit may be dismissed under Rule 8, where the defendant appears and not the plaintiff on the date of hearing. As regards the remedy-for the plaintiff in case of dismissal of a suit under the above provisions, it will be noticed that where a suit is dismissed under Rule 2 or 3, the plaintiff has the option of either filing a fresh suit within the period of limitation or apply for an order under Rule 4. Where the dismissal is under Rule 5 after a period of three months from the date fixed in the summons for the appearance of the defendant that the plaintiff has failed without good cause to apply for the issue of a fresh summons, the only remedy provided under this rule is the filing of a fresh suit subject to the law of limitation. Where, however, the dismissal is under Rule (8) when the defendant appears and not the plaintiff, unlike a dismissal of a suit under Rule 2 or 3 or 5, the plaintiff is precluded from filing a fresh suit In respect of the same cause of action. But he is entitled to file an application under Rule (9) forgetting the ex parte decree set aside on the ground that he had sufficient cause for his non-appearance on the date of hearing.

(3.) There is however one distinction between cases in which an application is filed for setting aside the order of dismissal under Rules 2 and 3 and the order under Rule (8). It will be noticed that in the case of a dismissal under Rule (2) the defendant has not been served with summons at all and in the case of Rule (3) the defendant like the plaintiff is absent. That is why, it is not provided that a notice should go to the defendant before the dismissal order passed either under Rule 2 or 3 is set aside. On the other hand, It will be noticed that when an application is filed under Rule (9) of Order IX for setting aside an order of dismissal passed under Rule (8) for the absence of the plaintiff when the defendant is present, it is provided under Sub-rule (2) of Rule (9) that no order shall be made under this rule unless notice of application has been served on the defendant. As against the absence of provisions for issue of notice before an ex parte order is set aside under Rule (4), it will also be-noticed that an application to set aside the ex parte decree under Rule 13 cannot be set aside unless notice of the application has been served on the opposite party. The contrast in the two sets of provisions is significant. The learned District Judge is therefore wrong in insisting on the issue of a notice to the respondent when an application under Rule 4 of Order IX, Miscellaneous No. 144/50-51 was filed. The learned District Judge may if he is satisfied that there was sufficient cause for the petitioner not paying the Court-fee and the postal charges (if any) required within the time fixed before issue of summons, set aside his order, without notice to Respondent.