Narayan Chandra Das vs Parikhita Mohapatra

S.C. Mohapatra, J.—Plaintiff is the Petitioner against an order of refusal to restore the suit dismissed for default.

The suit was posted to 14-3-1983 directing the Plaintiff to take fresh steps for issue of summons on the Defendant. The Plaintiff having failed to take steps, the suit was dismissed for default. The Plaintiff filed an application under Order 9, Rule 4, CPC for restoration of the suit. The order under Order 9, Rule 4, CPC not being appealable under Order 43, Rule 1, CPC this Civil Revision has been filed.

The trial Court did not believe the illness of the Plaintiff on 14-3-1983 which was pleaded to be the cause for not taking steps on that date. It further held that Order 9, Rule 4, CPC is not attracted as the dismissal of the suit is under Order 9, Rule 5, Code of Civil Procedure.

On the contentions of both the parties, the following points arise for consideration:

(a) Whether the dismissal of the suit fer default is under Order 9, Rule 5, Code of Civil Procedure,

(b) Whether a suit dismissed fer default under Order 9, Rule 5, CPC can be restored to file in exercise of power u/s 151 Code of Civil Procedure?

(c) Whether in exercise of the revisional jurisdiction the finding of fact that the Plaintiff was not ill an 14-3-1983 can be interfered with?

Point (a): Fer dismissal of a suit under Order 9, Rule 5, CPC the following conditions are to be satisfied:

(i) Summons issued must have been received back unserved and

(ii) the Plaintiff must have failed to apply to the Court fer Issue of fresh summons.

In the present case, the process server reported that he found the residence of the Defendant on his personal enquiry and as the Defendant was absent there being no other person authorised to receive the summons, he served the same by affixture in presence of witnesses. This manner of service is provided fer under 5, Rule 17, Code of Civil Procedure. Therefore, it cannot be said that the summons returned unserved. Return of the summons unserved and treating the service as insufficient are net the same Accordingly, the suit could not have been dismissed under Order 9, Rule 5, Code of Civil Procedure.

Point (b): Whether a suit dismissed for default under Order 9, Rule 5, CPC can be restored to file in exercise of power u/s 151, CPC is academic and accordingly do not propose to consider the said question. The decisions cited by the learned Counsel for the apposite party to the effect that a suit dismissed under Order 9, Rule 5, CPC cannot be restored to file are not required to be considered in this case.

Point (c): The trial court has not accepted the plea of illness of the Plaintiff an 14-3-1983. It has taken into consideration the petition where it was asserted that the Plaintiff was ill from 12-3-1983 and the last date of illness was left blank. No medical certificate having been filed and no doctor being summoned or examined to show that the Plaintiff was actually ill on the relevant date, the plea of the Plaintiff was disbelieved. Normally it would be a question of fact and, there would be no scope for interference in revision. In this case, however, the Plaintiff filed a petition to the effect that the doctor of the hospital where the Plaintiff was an indoor patient and under whom he was working as a driver promised to come with the indoor register to give evidence in the case and had not turned up. The Plaintiff, accordingly, prayed for an adjournment immediately after his examination which was refused. No reason has been indicated for refusal of the prayer. Refusal of the prayer unreasonably amounts to exercise of jurisdiction with material irregularity. On this ground the finding of fact is not binding on me in revision.

If the case would have depended only on the illness of the Plaintiff for not taking steps, I should have given opportunity to the Plaintiff to examine the doctor and prove the entries in the indoor register. From the order dated 21-12-1982 it is seen that the Plaintiff had filed the postal requisites on the same day. The order reads as follows:

S.R. already back being served by affixture in absence of Defendant and identification of Plaintiff. No P.O. joined. Plaintiff files postal requisites.

If the postal requisites filed would have been issued immediately there might not have been any scope for dismissal of the suit for default on 14-3-1983. No action seems to have been taken. The subsequent orders disclose that the Presiding Officers were putting their signatures mechanically without application of mind. This would be clear from the three subsequent orders quoted below:

7-1-1983. Plaintiff''s advocate files hazira. No P.O. has joined Call on 31-1-1983 when Plaintiff to take fresh step on Defendant.

31-1-1983. Plaintiff is absent and no postal step taken by him or by his advocate. P.O. has not joined. Call on 22-2-1983 for further orders.

22-2-1983. Plaintiff s advocate files hazira only, but p. fee and W.Ps. have not been filed for issue of summons on the Defendant.

Call on 14-3-1983 when Plaintiff do file p. fee and W.Ps. for issue of summons on the Defendant or else the suit shall stand dismissed.

In case the Advocate for the Plaintiff would have been present on 7-1-1983 or even on any subsequent date he would have pointed out that postal requisites have already been filed.

Heart of any person looking to these orders would bleed to find the mechanical manner in which the litigation of an aggrieved person approaching the Court has been dealt with.

Curiosity dragged me to pass through the entire order sheet in this case. I cannot but observe that the advocate for the Plaintiff in the trial court as well as the Presiding Officers passing various orders have not given due importance to the public policy of quick disposal of cases. Initially requisites for service of summons both through Court and by registered post were not filed. Order 5, Rule 19-A, CPC was thus, ignored. There is no order of the Court to indicate that simultaneous service both ways was not necessary. By order dated 26-2-1982 the Plaintiff was directed to take steps for issue of summons on the Defendant by 20th March, 1982. From 20th March, 1982 till 30th June, 1982, the Plaintiff''s advocate only filed hazira which is not a procedure laid lawn by law and is only a practice developed in course of time. It is astonishing that without any prayer on behalf of the Plaintiff, the trial court freely adjourned the case from time to time accommodating the Plaintiff to take fresh steps. The various orders would indicate that the proceeding was fully under the control of the ministerial officers of the Court. If this unfortunate situation continues, the entire judicial administration is likely to be in peril in future. Serious view should be taken in future by the Presiding Officers of the Courts and the concerned inspecting authorities to examine these aspects of the matter.

As the Defendant has appeared in this Civil Revision, no further notice need go to him. I direct the parties to appear before the trial court on 10th November, 1984 when the Plaintiff shall serve a copy of the plaint on the Defendant and the Defendant shall be given some time to file the written statement.

In the result, the Civil Revision is allowed. In the peculiar circumstances of this case, there would be no order as to costs.