E.C. Decruze vs Mrs. L.T. Pitts

Rowland, J.—This is an application presented by the defendant in a pending Small Cause Court suit. The proceedings have had a somewhat chequered history and the recital of a few dates will help to make matters clear. The suit which was for a claim of Rs. 447 was based on a handnote bearing date 16th June 1929, and was instituted on 15th June 1932. Summons was issued fixing 15th July 1932 for disposal and the serving officer returned the summons unserved on 6th July 1932. On 15th July 1932 the plaintiff put in appearance and was directed, the summons having comeback unserved, to take steps by the following day. The order sheet does not say what steps. On the 16th the plaintiff petitioned for time and the case was adjourned to 21st July for taking step. The order sheet does not say what step. On 21st July 1932 no step was taken.

The order was "put up tomorrow for orders." On 22nd July no step was taken. The plaintiff did not respond on call and the order passed was "that the suit be dismissed for default." The order does not show under what provision of law it was passed; but it appears to have been supposed that the order was passed under Rule 2 or Rule 3 of Order 9.

On 17th November 1932 the plaintiff presented an application under Order 9, Rule 4, applying for an order setting aside the dismissal, Order 47, Rule 1, is also mentioned in the petition; but the petition was treated as coming under Order 9, Rule 4. As a matter of fact the necessary court-fee for an application for review under Order 47 was not paid and moreover it has been held that an application under Order 47, Rule 1 designed merely to escape the consequences of the law of limitation is not maintainable when the proper remedy was an application under Order 9, Rule 4 or Rule 9 and the period of limitation for such an application has expired. The plaintiff alleged that through negligence of her lawyer she had come to know of the dismissal of the suit only on 17th November 1932.

Her application was taken up on 3rd December 1932 and was granted on 5th December 1932 and the suit was restored to the file. This was done without notice to defendant. Thereupon summons was issued and defendant appeared on 10th February 1933 and was granted time till 17th February 1933 for filing written statement. In the meantime he inspected the record and moved the Court to review its order passed on 5th December 1932 on the ground that the plaintiff''s application for restoring the suit was filed out of time and should not have been allowed.

The Subordinate Judge thought that as the plaintiff came within 30 days of the date of knowledge of dismissal of the suit, her application to restore it was within time. This was manifestly erroneous, the mistake being due to the failure of the Subordinate Judge to distinguish between Articles 163 and 164, Lim. Act. In Article 163 the starting point is the date of dismissal and there is nothing in this article about the date of knowledge as there is in Article 164. Section 5, Lim. Act, has not been made applicable to an application of this kind so as to give the Court power to extend the time. Therefore the order passed by the Subordinate Judge was clearly erroneous.

The question then is whether this Court ought to interfere in the exercise of revisional jurisdiction and the most important circumstance which might dispose me to hold my hand is that it is represented that the original order dismissing the suit on 22nd July 1932 was itself irregular, the Court not having followed the procedure laid down in Order 9. I shall therefore examine the relevant rules of that order. Rule 2 provides for dismissal of the suit if on the date fixed for the hearing, that is to say, for the defendant to appear and answer (R. 1) it is found that the summons has not been served on the defendant in consequence of the failure of the plaintiff to pay the court-fee etc., on the process.

This rule applies, to the first issue of summons. Rule 3 applies when on the date fixed for hearing neither party appears. Both these rules refer to what happens on the date which is fixed for the appearance of the defendant and the hearing of the suit. Where the summons was duly issued but through no fault of the plaintiff has not been served there are other provisions. Rule 6(1)(b) provides that if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant. It is to be noted that the word used in this rule is "shall" and not "may" and the wording of the rule appears to imply that the second summons should be issued ordinarily without charging a second process fee. Rule 6, Sub-rule 2, makes provision for the special case where it is owing to the plaintiff''s default that the summons was not duly served or was not served in sufficient time directing that in such a case the Court shall order the plaintiff to pay the costs occasioned by the postponement, which I understand to mean or include, payment of sufficient process fee for issue of a second summons. Order 9, Rule 5 gives the Court 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 cause for extending the time.

It is manifest that the summons having been returned unserved on 6th July 1932, the period of three months to which the plaintiff was entitled for tracing out the defendant had not elapsed when the suit was dismissed on 22nd July 1932. The order of that date was therefore premature and irregular and it was I think to be regretted that the Small Cause Court Judge took the course of passing that order. In the circumstances, I think I should be justified in the exercise of discretion in declining to interfere with the subsequent irregular order which was passed by the Small Cause Court Judge.

The result will be that the application is dismissed but in the circumstances of this case the parties will bear their own costs. Before I conclude, I should like to mention that it is in my opinion undesirable for the Courts of first instance to note in the order sheet that a date is fixed for taking steps without specifying what the steps are which the party is required to take.