Kesho Prasad Singh vs Ramraj Pandey and Another

Jwala Prasad, J.—This is an application against the order of the Court below, dated 7th January 1930, dismissing the suit of the plaintiff on account of the laches of the plaintiff to have the summonses served on the defendants as stated by the Court below. The suit no doubt was an old one, having been instituted on 6th April 1929, and the case was adjourned from time to time for service of summonses upon the defendants. The defendants reside in the Ballia District and the summonses could not be served upon them as they could not be found, and the last summonses were issued by the order of the Court below on 6th December 1929, fixing 7th January 1930. The peon returned the summonses on 2nd January 1930, stating that he went to village Nim Chapra in the District of Ballia and came to learn from Bhagwat Ojha that there was no man of the name of Tribeni Tewari defendant 2 at that time in the village and the where about of Ramraj Pandey were not known and hence the summonses are returned unserved. In the plaint as well as in the petition of revision filed in this Court the address of Ramraj Pandey is stated to be a resident of Bishunpur and Tirbeni Tewari of Nim Chapra, Pargana and District Ballia. Notice of the application in revision filed in this Court was served upon Ramraj Tewari and he received it and has entered appearance in this Court. Tirbeni Tewari in the meantime died and in his place his mother Pan Kuer and uncle Parmeshwar Tewari have been substituted as his heirs and representatives. Parmeshwar Tewari received the notice and signed it on behalf of self and Pan Kuer. So these persons have local habitation, and the notice could be served upon them. Summonses also could have been served upon them. Probably the defendants were evading the service of summonses on them, and the report of the peon referred to above is not satisfactory.

The Munsif says that it was the duty of the plaintiff to have the summonses served, implying that he ought to have supplied an identifier. Bur in the United Provinces to which the Ballia District appertains an identifier for service of summons is not required and we are trying to do away with it as far as possible and unless the person to be served is fictitious, or the address is wrong, there is no reason why a vigilant process-server should not be able to serve processes without the help of an identifier. He can have the necessary information and assistance of the chawkidars and the panches. In the United Provinces the matter stands on a different footing. There the patwari system, who is a sort of Government servant, affords facility for service of process. Considering the practice which obtains in the United Provinces, the plaintiff in this case did not probably think it necessary to supply an identifier but he always put in the necessary process fee and the forms; and on the last date, namely, 7th January 1930, when his suit was dismissed, the plaintiff applied for time to take necessary steps. His application was rejected upon the grounds, as stated by the Court below, that the plaintiff took out summonses several times but could not get them served. The suit on that ground, it is urged by Mr. Mullick, could not be dismissed under Order 9, Rule 2. He says that the Court should have directed fresh summonses to issue upon the plaintiff filing proper fee and forms, and he refers to Rules 4 and 5, Order 9 and says that they do not provide for dismissal of a suit. He also refers to Rule 6 and says that the Court should have directed fresh summonses to issue and should not have dismissed the suit. Mr. Mullick relies upon the case of Lallubhai Vejeram v. Bai Magangavri [1894] 18 Bom. 59.

That was a case where the notice of appeal was returned unserved and the appeal was dismissed. It was held there that the Court had no jurisdiction to dismiss the appeal but should have given an opportunity to the appellant to have the notice served again, Mr. S.N. Rai on behalf of the opposite party refutes this argument and contends that the principle urged by Mr. Mullick does not apply to several successive returns of nonservice of summons, but only to the first summons and the Court can direct only second summons to be issued and served upon the defendant and he relies for his contention upon Clause (b), Rule 6 which says:

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.

The contention is that so far as the second summons in this case was concerned, the Court did grant time and in fact did grant time several times; but the obligation upon the Court to give time for the service of summons does not extend ad infinitum, for in that case the suit would never be disposed of. To meet the contention of both sides the CPC has provided in Order 5, Rule 20 that:

Where the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy there of in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

This is commonly known as substituted service, and. I think upon the facts disclosed in the order sheet of this case, a sample whereof is to be found in the report of the serving peon referred to above, a substituted service should have been resorted to. This was the duty both of the Court below and of the party concerned. The Court''s duty is to be gathered from the use of the word "shall" in the rule and the party''s duty from the fact that he is the plaintiff in the case and ought to have apprised the Court of the fact and applied for substituted service. Therefore in passing the order in question not only the party but also the Court was at fault and if not before, as was disclosed by the report of the serving peon, at least on 7th January 1930, instead of dismissing the suit the Court should have pointed out to the plaintiff to take steps under Order 5, Rule 20, failing which the Court could have dismissed the suit, but until that was done I do not think it was proper for the Court to dismiss the suit when the plaintiff was ready to take necessary steps in the matter and was spending money in order to have the summonses served upon the defendants and by doing what he was required to do; namely, to put in the process fee and the costs, the supplying of an identifier not being necessary in the United Provinces. From the fact that notice of the application in revision could be served upon the defendants it is obvious that there was something amiss somewhere and the defendants were evading service of summonses but when they found that they had gained their object and the suit had been dismissed one of them appeared in this Court in order to support his valuable right which he had acquired, namely, the dismissal of the suit and the ending of the claim against him.

Considering all the circumstances I think this is a fit case where both upon law and facts the order of the Court below dismissing the suit should be set aside and the application should be granted; but as the plaintiff, as observed above, is not altogether free from blame he cannot have the suit revived without paying to the opposite party the costs of this application which is a condition precedent to the suit, being restored in the Court below. Hearing fee two gold mohurs.