BABU LAL SAHU Vs. HAKIM TAMIZUDDIN

JUDGEMENT

(1.) This application in revision is directed against the orders, of the learned Munsif of Begusarai expunging the defendant 10 from the suit and refusing to recall that order when the plaintiffs appeared to show cause against the order expunging that defendant. It appears, with reference to the order-sheet of the suit, that on 19th June, 1946, both patties applied for time and one Bhutoo Mian, karpardaz of defendant 10, filed certain documents, as pee list; but the Court ordered, notwithstanding that, that the summons had not been properly served on that defendant. The plaintiffs were directed to file processes for fresh service on the said defendant 10. On 19 July 1946, the order sheet says that the summons to newly added defendant, that is to say, dependent 10, was served, but it was not proper. Therefore, the plaintiffs were directed to take fresh steps for service on the defendant. Our the 3 of August, the plaintiffs applied for time to take necessary steps, and, oil the 6th, the plaintiffs made an application supported by an affidavit that substituted service be, effected against the said defendant. The Court passed orders after hearing the parties on 7 August 1946, allowing the plaintiffs application for substituted service, but gave them only three days time, that is till 10 August 1940, to take the necessary steps. This order did not indicate that travless steps were taken by that date, the name of defendant 10 would be expiinged frbm the record. On 6 September 1946; the plaintiffs applied for time to take the necessary steps for substituted service against that defendant. The Court ordered that defendant 10 be expunged (as ?) requisite steps had not been taken.

(2.) In my Opinion, the Court below has acted against the provisions of Rule 5 of Order 9, Civil P.C. In the first place, the Court gave the plaintiffs only three days time td take the necessary steps for substituted service. That in itself was wholly insufficient. The Court did not indicate in, its order sheet that it was what is here called a peremptory order.

(3.) In my opinion the Court below would have exercised a sound judicial discretion if it had allowed the plaintiffs prayer for time to take the necessary steps in the matter. Not having done so, the plaintiffs again applied to the Court for recalling that order on 20 November 1946. This delay must partly be interrable to the intervening Puja holidays. I am informed that the requisite steps for service on defendant 10 have already been taken.