Garud Chit and Trading Company, Private Ltd., Indore vs Prithipal Singh and others

H. G. Mishra, J.

This revision by the plaintiff is against the order dated 18-9-1978, whereby the suit brought by him against the defendant-non-appli-cants-herein has been ordered to be dismissed, white it still is pending against Pritamsingh, the other defendant.

Facts essential for decision of this revision are as under: The pfaintiff-applicant-herein brought a suit for recovery of money giving rise to this revision against Pritamsingh and the non-applicants herein. During the pendency of the suit the plaintiff failed, for a period of one month from the date of the return of summons, which had been issued to the defendant-non-applicants-herein, to apply for the issue of a fresh summons to them. However, the trial Court went on adjourning the case and permitted the ptaintiff-applicant-herein to submit requisite process fee for effecting service of summons of the suit, on the non-applicants-herein and ultimately the non-applicants were served. When the non-applicants appeared before the Court they submitted an application under Order 9, Rule 5 read with section 151, CPC praying for dismissal of the suit on account of contravention of the mandate of law contained in Order 9, Rule 5, Civil Procedure Code. This application was opposed by the plaintiff-applicant-herein. However, by the impugned order the learned Judge of the trial Court has made an order that the suit be dismissed against the defendant-non-applicants. Thus, the suit remains pending as against Pritamsingh. Aggrieved by the aforesaid order the plaintiff has preferred this revision.

In this revision it is contended by Shri R. G. Waghmare (assisted by Shri R. R. Waghmare) that the impugned order has been passed in an illegal manner and that Order 9, Rule 5 cannot be put into their service by such defendants who have ultimately been served; that the trial Court having permitted the plaintiff time beyond the specified period of one month, even without any application for condonation of delay involved in the non-submission of process-fee within the period specified by Jaw, will be deemed to have extended the time by implication; that Order 9, Rule 5 cannot be employed as a weapon for dismissal of the suit after their being served with summons. Reliance is placed on the ratio of Shankarlal v. Nathulal 1980 J L J 517.

Shri Surendrakumar Jain, learned counsel for the defendant-non-applicants raised two-fold preliminary objections to the effect that the revision is not competent, inasmuch as the impugned order amounts to a decree and that the revision application is not properly constituted, inasmuch as Pritamsingh defendant has not been impleaded as a party. On merits, Shri Jain submitted that the impugned order does not manifest any jurisdictional error, which may be amenable to the jurisdiction of this Court u/s 115, Civil Procedure Code.

Having heard the learned counsel for the parties I have come to the conclusion that the preliminary objection with regard to the non-maintain-, ability of revision as well as the frame of the revision deserve to be overruled and the revision deserves to be allowed.

Rule 5 of Order 9, CPC in terms describes the nature of the pronouncement thereunder as "an order". This is what is clear from the expression "the Court shall make an order that the suit be dismissed as against such defendant, implied in sub-rule (1) of Rule 5 of Order 9 " When the framers of the law designate it as "an order", by no process of construction of the definition of the word ''decree'', as defined in section 2(2), it can be construed to mean a decree. Section 2(2) defines ''decree'' as under:

''Decree'' means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

It is true that what is said to be not included within the definition of the decree is inter alia "an order of dismissal for default". However, by this negative approach it cannot be concluded that what is said to be not included will be deemed to be included in the definition of the decree. The order passed under Order 9, Rule 5(1) does not amount to formal expression of an adjudication, which so far as the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

In terms Order 9, Rule 5(1) designates it as an order as stated above. However by sub-rule (2) thereof the plaintiff has been given a right to file a fresh suit of course subject to the period of limitation. This apart, as held in Setabi Dei Vs. Ramdhani Shaw and Others, and in Amirjan Saheb v. Syed Khader. A I R 1978 Mad 365 the defendant as against whom such an order has been passed can be impleaded as a party to the suit in exercise of the power vested in the Courts by virtue of Order I, Rule 10(2), Civil Procedure Code. Thus, it is clear that the framers of law never intended to treat an order passed under sub-rule (1) of Rule 5 of Order 9, CPC as a decree, which may preclude institution of a fresh suit Accordingly, the impugned order cannot be regarded to be a decree within the definition of the word ''decree'' as given in Section 2(2) of the Code of Civil Procedure. Moreover the impugned order is not shown to be an order appealable either by virtue of Section 104, CPC or Order 43, Rule 1 Civil Procedure Code. The impugned order, therefore, does not amount either to a decree or an appealable order. As such, the revision is competent and the preliminary objection regarding its non-maintainability is over-ruled.

This brings me to the contention with regard to the frame of the revision. It is contended that on account of non-impleadment of Pritamsingb as non-applicant in the revision application, it should be dismissed as having been badly constituted. It is contended that all parties to the suit are necessary parties to the revision. This argument appears to, be attractive on the face of it but it is devoid of substance. By the impugned order the'' suit is dismissed as against the defendant-non-applicants herein, but so far as Pritamsingh is concerned, the suit is still pending before the trial Court. In such a situation Pritamsingh cannot be regarded to be a necessary party for present purposes. For the same reason it cannot be held that the revision application is badly constituted for his non-impleadment.

This brings me to the merits of the revision. Undoubtedly, even after the failure of the plaintiff-applicant-herein to apply for issuance of fresh summons within the period specified by sub-rule (1) of Rule 5 of Order 9, Civil Procedure Code, the trial Court went on adjourning the case for submission of the process fee. Accordingly, it will be deemed that the default in that behalf was. condoned by the trial Court. Moreover, the provisions placed in Order 9, Rule 5 (1), CPC are not intended to supply weapon in the hands of defendant, who after being served makes appearance before the Court, for securing a dismissal of the suit on the ground that at some earlier point of time the plaintiff had failed to comply with the letter of law. For reasoning employed in Shankarlal''s case (supra), it has to be concluded that the approach of the Court below to the present situation was wholly illegal. The impugned order manifests an illegal exercise of jurisdiction and occasions a failure of justice. Reliance on the ratio of Shaw & Co. v. B. Shamaldas & Co. A I R 1945 Cal 369 is not open in the light of the ratio of Shankarlal''s case (Supra), wherein the view expressed in that case has been expressly dissented from.

In order to resist the aforesaid conclusion reached by me Shri S. K. Jain, learned counsel for defendent-non-applicants placed reliance on the ratio of Damodar v. The Paliwal Transport Company & Ors. 1970 J L J 101 From the condensation of facts and law in the case of Damodar (Supra), relied on by the learned counsel, it does not appear that the decision is an authority governing the present situation. It may be that the suit might have been dismissed on account of failure to pay process-fee within the contemplation of Rule 2, of Order 9, Civil Procedure Code.

Accordingly, the revisioti succeeds and is hereby allowed. The impugned order is set aside. Now the case will go back to the trial Court for its trial in accordance with Jaw. In the circumstances of the case I direct the parties to bear their own costs as incurred. The parties.are directed to apper before the trial Court on 2-3-1981. Records of the court below be sent back immediately so as to reach there before the aforesaid date.