NAGINBHAI DEVSHIBHAI SANGHVI Vs. RAMNIKLAL PAUN

JUDGEMENT

(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 0 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 24/11/1978. THE summon- ses 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 23/02/1979 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 16/03/1979 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 3/04/1979. However once again the petitioner defaulted in paying the process-fees. On 3/04/1979 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 pre- ferred 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 maint- ainable. He therefore rejected the said application with costs on 17/11/1979 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 le court-fee or postal charges (if any) chargeable for such service the Court nay 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 in- ant case the facts set out earlier clearly disclose that even after the court had granted the petitioners application for payment of process- fees the petitioner failed to pay the same and hence the Court dismissal le suit. Under Order 9 Rule 4 where a suit is dismissed under Rule the plaintiff may (subject to the law of limitation) bring a fresh suit he may apply for an order to set the dismissal aside and if he sati- sfies 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 pain 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 brings 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 Pro- cedure. Now if we refer to the order passed by the learned trial Judge t 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 non- payment 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. How- Ever 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 he suit under Order 9 Rule 5 and not under Order 9 Rule 2 of the node. This observation however is not consistent with the order passed the learned trial Judge while dismissing the suit. Now Order 9 Rule 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 or 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 endeavors 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 had 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 24/11/1978 23/02/1979 and 16/03/1979 but the petitioner failed to pay the process fees. It was for that reason that the suit came to be dismissed on 3/04/1979 It is therefore obvious that the suit was dismissed for non-pay- ment 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 main- tunable 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.

(2.) IN the result this Revision Application is allowed. The dismissal of the petitioners 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. Application allowed.