Kesho Prasad Singh vs Mohoendra Prasad and Others

Fazl Ali, J.—These civil revisions arise out of a batch of rent suits which have been dismissed by the learned Munsif of Buxar. They fall in two batches, the first batch consisting of C.R. 302 and 321 to 331 and the second batch consisting of C.R. 434, 435 and 451.

A special point is raised with regard to C.R. 451 and it may be at once dealt with. The suit was dismissed in this case on 20th May 1931. The application in revision was filed on 10th August 1931. At the time this application was filed one of the tenants who was a defendant in the rent suit, namely Awdh Behari Ojha was not made a party to the application. An application was made in this Court on 20th November 1931, more than three months after the filing of the revision application to implead him as a party.

Later on when it appeared that he was dead, an attempt was made to substitute his heirs. The order-sheet definitely shows that the petitioner was not diligent even in making this application to substitute the heirs of Awdh Behari Ojha. Ultimately the heirs were allowed to be impleaded on payment of one gold mohur as costs to their guardian. Now the learned advocate for these minors appears and contends that this revision should not be entertained, and it appears to me that there is much substance in this contention. The suit was dismissed against Awdh Behari, one of the tenants and although it is not a matter of law, but it is a matter of uniform practice that civil revisions are entertained in this Court only if they are filed within three months of the date of the order sought to be revised.

When this revision was filed Awdh Behari was not made a party and no attempt was made to add him as a party until several months after the filing of this revision. In these circumstances if I were to restore the suit I would be not restoring it against the original parties but against some of the original parties and the heirs of one of the parties. It is unnecessary to repeat that originally the suit was never brought against the heirs of Awdh Behari who are now at this late stage sought to be introduced in the suit. If the suit is not brought against all the tenants interested in the holding, it cannot be maintained as a rent suit. In my opinion it will be unfair in the circumstances of the case to interfere with the order of dismissal passed by the learned Munsif in the suit out of which C.R. 451 arises. C.R. 451 is therefore dismissed but without costs.

With regard to the applications in C.R. Nos. 434 and 435, it appears to me that a very clear case has been made out by Mr. Sushil Madhab Mullick who appears for the petitioner for setting aside the order of dismissal passed by the learned Munsif. As far as I can gather from the order sheet the circumstances under which the suit was dismissed were as follows: More than one attempt was made to get the summons served upon the defendants, but each time the attempt failed. On 1st May 1931 the Court passed an order directing the summons to be re-issued to the defendants fixing 20th May 1931 for settlement of issues. On 20th May 1931 summonses were again returned unserved and the plaintiff filed a petition for issue of fresh summonses to the defendants.

It appears that in the process-fee that was deposited there was a certain deficit and on that ground the learned Munsif dismissed the suit under Order 9, Rule 2. In my opinion however the learned Munsif had no jurisdiction to dismiss the suit under the rule which runs as follows:

Where on the date so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, the Court may make an order that the suit be dismissed.

Clearly Order 9, Rule 2, would have been applicable to this case if on 20th May 1931 it had been found that the last summons could not be served on account of the failure of the plaintiff to deposit the process-fee.

This rule however does not authorize the Court, to dismiss a suit merely for the reason that the process fee which is required for fresh summons is not filed promptly along with the application for the issue of such summons. I would therefore allow the applications in Civil Revision Nos. 434 and 435 without costs, set aside the order of the learned Munsif and direct that the suits be restored. In Civil Revision Nos. 321 to 331 and 302 a different point arises. Here the summonses issued for the first time were received back unserved on 17th January 1931. On that date the Court ordered fresh dasti summonses to be issued to the defendants at the request of the plaintiff. These summonses were actually issued from the office on 11th December 1931. On 17th January 1931 they were received unserved from the Munsif of Balia with a note that they had reached him after the expiry of the date fixed. The petitioner thereupon applied for fresh summonses but the learned Munsif rejected his application and dismissed the suit on the ground of the laches of the plaintiff.

It is conceded on behalf of the respondents that in dismissing the suit the learned Munsif did not act under any of the provisions of the CPC but in exercise of his inherent powers. The question of exercising inherent powers may come in when the powers expressly conferred by the CPC are exhausted. In this particular case I find that the learned Munsif was empowered under Order 9, Rule 6, Clause (2), to direct the plaintiff to pay the costs, if any, occasioned by the adjournment. Order 9, Rule 5, says:

Where after a summons has been issued to the defendants, or to one of several defendants and returned unserved, the plaintiff fails, for a period of three months from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officer, to apply for the issue of a fresh summons, the Court shall make an order that the suit be dismissed, as against such defendants unless the plaintiff has within the said period satisfied the Court that there is, among other things, any sufficient cause for extending the time.

The learned Munsif has resorted neither to the procedure laid down in Rule 5 nor to the procedure laid down in Rule 6. In my opinion, the order passed by the Munsif in these cases should be set aside and the suits be restored. At the same time as there was undoubtedly some want of diligence on the part of the plaintiff I would direct that he, as a condition precedent to the restoration of the suit, do pay to the respondents a sum of Rs. 10 in each of the applications which are contested.