Ram Prasad Potedar vs Ram Narain Singh and Others

This application in revision is preferred against the dismissal on 27th February 1933 of the suit of the petitioner for default of both parties and the dismissal of his application under Order 9, Rule 4, Civil P.C., to set aside the said dismissal for default. The petitioner brought a suit for recovery of rent against the first two defendants making the third defendant who, is a minor, a party thereto, and the Court fixed 16th January 1933 for disposal. On that date summons on defendant 3 was reported to have been served and summons on the other defendants was returned unserved. On the application of the plaintiff it was ordered that fresh summons be issued on defendants 1 and 2 fixing the 7th February for disposal, "on plaintiff filing processes, etc., in four days." On the 7th February plaintiff applied for a small amendment of his plaint and also filed the process fee and processes for issue of fresh summons on defendants 1 and 2. Defendant 3 appeared and applied for time to file written statement. The order of the Court was:

Let the plaint be amended as prayed for and issue fresh summons on defendants 1 and 2 fixing 27th February 1933 on plaintiff filing, copies of amended plaints in four days.

The plaintiff failed to file copies of the amended plaint and no summons was issued. On the 27th February neither party appeared in Court (plaintiff''s pleader, as on a previous occasion could not be found) and the Court having pointed out that plaintiff had "not taken out the summons ordered on the previous date," passed order dismissing the suit for default of both parties. The plaintiff''s application under Order 9, Rule 4 was on the basis that the karpardaz had misinformed his brother that the date fixed was the 28th February and the Court held that no sufficient cause for absence had been made out. In revision it is not and could not be contended that the order under Rule 4 was without, jurisdiction or in any way erroneous. It is however contended by Mr. Sarju Prasad, first, that the case did not fall under Rule 3; and secondly, that it did fall under Rule 5 under which he had three months from the 16th January within which to serve fresh summons on defendants 1 and 2 on whom failure of service of summons was reported on that date.

In support of the first plea, the argument is that the 27th February was not fixed for the hearing of the case and so the suit could not be then "called on for hearing." The contention is without substance. The summons was for disposal, and even the form of process filed by the plaintiff was for disposal of the suit. I do not think that it can be said that Rule 3 necessarily applies, only when the summons has been served. It is true that Rule 2 penalises failure of the plaintiff to pay the court-fee or postal charges chargeable for service of summons, but that is not the only manner in which plaintiff may fail to adopt the necessary procedure to bring the defendant before the Court. Had he failed to file process the result would have been the same. Under Order 5, Rule 2 a copy of the plaint must accompany the summons. The Court fixed a time within which the plaintiff was to file it. Plaintiff failed to carry out the order with the result that summons could not be issued.

Then not only did plaintiff thus fail to bring defendant before the Court but he neither appeared nor was represented. He brought about the position which is dealt with under Rule 3. That provision includes also the case where the summons was not issued because of laches of the plaintiff other than that dealt with in Rule 2. For instance, there might be a compromise out of Court which had rendered it necessary for the plaintiff to issue summons or to comply with the previous order of the Court or to be present in person or by pleader.

The suit was fixed for disposal and was on that date called on for hearing and in the absence of the parties the Court clearly had jurisdiction to dismiss the suit, and further the appeal against the order of dismissal has been dismissed. This point therefore fails.

Mr. Sarju Prasad next contends that the case falls under Rule 5. He points out that summons had been issued to defendants 1 and 2 but returned unserved. But Rule 5 is not really applicable since the suit had been changed and new summons on an amended plaint fell to be issued superseding the previous summons on the unamended and superseded plaint.

The point is untenable. I am unable to find that either the order under Rule 3 or the order under Rule 4 was without jurisdiction. Not the Court but the pleader of the plaintiff and perhaps his pairvikar is to blame. The rule is discharged with costs: pleader''s fee one gold mohur.