Shree Sanand Textile Industries Ltd. and Another vs Naranji Peraj Transport Co.

S.D. Shah, J.—This Civil Revision Application filed u/s 115 of the CPC raises an interesting question of interpretation of Order 9, Rule 5 of the CPC as to whether a Civil Court which passes an order dismissing the suit under Order 9, Rule 5(1) has power to set dismissal aside and to restore the suit to file on sufficient cause being shown.

The aforesaid question arises in the following facts situation.

The petitioner-original plaintiff instituted Civil Suit No. 4033 of 1988 in the City Civil Court at Ahmedabad to recover an amount of Rs. 14,116.42 ps. from the sole defendant (respondent), along with costs and interest on the ground that goods which were entrusted to the defendant, as carrier were damaged and, therefore; he was liable to make good losses caused to the plaintiff.

The suit was instituted on 26th July, 1988 and it appears that on payment of process fee, summons was issued to be served on the defendant. The said summons was signed by the Deputy, Registrar, on 17th August, 1988 and it called upon the defendant to appear before the Court on the 12th day of October, 1988 at 11.00 O''clock in the forenoon. It appears that Bailiff of the City Civil Court tried to serve the summons at the stated address on 22nd August, 1988, 25th September, 1988 and 7th October, 1988 and he submitted the report on 7th October, 1988 stating that on inquiry, the defendant was not found and his address or whereabouts were not known or shown by anyone, therefore, summons was returned. On the aforesaid, endorsement being made, it appears that the suit was placed before the Chamber Judge on 14th December, 1988 and on that date following order was passed.

"In this case the summons issued to the defendant was returned unserved since 14-10-1988 no process is paid re-issuing the process. No further the plaintiff taken any steps for service of summons issued. The suit therefore stands dismissed against the defendant with no order as to costs."

The aforesaid order undoubtedly makes very poor Reading in English language however, it is reproduced verbatim from the certified copy supplied to the Court.

It appears that on that very day around 1.30 noon, an application was filed by the plaintiff inter alia stating that when the suit was notified in the Board of objection, and when the learned advocate appearing for the plaintiff made an inquiry he came to know that the suit was ordered to be dismissed. It is further stated that when the summons was made returnable the clerk of the advocate had through oversight noted that the Summons was served and that defendant had applied for adjournment. Therefore, no steps were taken for issuance of fresh summons. It was because of such bona (fide) mistake of the clerk that no fresh process fee was paid. In the interest of justice, it was prayed that the order of dismissal was required to be set aside and the suit was required to be restored to file and after accepting the payment of fresh process fee, summons was required to be issued to the defendant afresh. On that very day, the learned City Civil Judge while rejecting such application has passed the following order:

"The suit has been dismissed under Order 9, Rule 5(1) of the CPC the record is (sic) permitted in Sub-rule (10) of Rule 5 of Order 9 of C.P.C. and that is filing of fresh suit subject to contains (sic) there is no provision for restoring the suit dismissed under Order 9, Rule 5 Code. I am helpless and I cannot grant this application. Hence the suit is rejected."

The order of the City Civil Court is not happily worded and undoubtedly makes a bad reading, however, in substance the Court has found that under Order 9, Rule 5(2) of the Code of Civil Procedure, there is provision enabling the plaintiff to institute a fresh suit subject to the law of limitation and that there is no provision for restoring the suit which is dismissed under Order 9, Rule 5 of the Code of Civil Procedure. He has, therefore, rejected the application. It is wrongly stated in the order that he has rejected the suit. In this revision application, the aforesaid two orders, one passed below the plaint and second passed on the application on the very day i.e. 14th December, 1988 are under challenge.

Mr. Ajay R. Mehta, learned Counsel appearing for the petitioner has assailed the aforesaid order of the City Civil Court by submitting that Order 9, Rule 5 of the CPC simply prescribes the procedure to be followed when plaintiff of a suit, after summons is returned unserved, for one month from the date of the return of the summons, fails to apply for the issue of a fresh summons. In his submission, though Rule 1 of Order 5 is couched in mandatory terms so as to provide that "the Court shall make an order that the suit be dismissed as against such defendant", the provision shall have to be construed as directory and not as obligatory so as to compel the Court to dismiss the suit. He submits that though no specific power to restore such a suit to file is given to the Court under Order 9, Rule 5, such power as is found in Order 9, Rule 4 shall have to be read in Rule 5 also so as to see that substantial justice is done as a party is not non-suited because of procedural lapse on it part. He submitted that Order 9, Rule 5 of the CPC being purely a procedural provision shall have to be purposively construed so as to serve the cause of justice rather than subverting the cause of justice. In the alternative, he submitted that the first order passed by the Court below (dismissing) the plaint is required to be quashed and set aside as on that very day the application is made by the plaintiff which could be construed as providing ''sufficient cause'' as contemplated by Order 9, Rule 5(1) of the Code of Civil Procedure. In his submission, the said application can be construed as one showing sufficient cause for extending time and the City Civil Court could have legitimately passed the order on such application. In either of the contingency, in his submission, the Civil Revision Application is required to be allowed.

In order to appreciate the aforesaid'' submission of the learned Counsel appearing for the petitioner, it is necessary to set out relevant provisions of Order 9 of the Code of Civil Procedure. The scheme of Rule 4 of Order 9 and that of Rule 5 of Order 9 is different. Therefore, Order 9, Rule 2 to Rule 5 are required to be examined and they are reproduced hereunder:

Order 9: Dismissal of suit where summons not served in consequence of plaintiffs failure to pay costs.

Rule 2: Where on the day 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 of postal charges (if any) chargeable for such service (or to present copies of the plaint or concise statements, as required by Rule 9, Order 7) the Court may make an order that the suit be dismissed.

(Provided that no such order shall be made, if, notwithstanding such failure, the defendant attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer.)

Rule 3: Where neither party appears, suit to be dismissed.

Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

Rule 4: Plaintiff may bring fresh suit or Court may restore suit to file.

Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may subject to the law of limitation, bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for (such failure as is referred to in Rule 2) or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

Rule 5: Dismissal of suit where plaintiff, after summons returned unserved, fails for three months to apply for fresh summons.

(1) Where after a summons has been issued to the defendant, or to one of several defendants and returned unserved, the plaintiff fails, for a period of one (month) from the date of the return made to the Court by the serving officers, to apply for the issue of a fresh summons, the Court shall make order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that -

(a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Rule 2 of Order 9 provides for dismissal of suit where summons is not served on the defendant in consequence of the failure of the plaintiff to pay the Court-fees or the postal charges for service of summons. Under Rule 3 of Order 9, the Court has power to dismiss the suit where neither party appears when the suit is called on for hearing. In either contingency under Rule 4, Order 9, plaintiff has two options: (1) he may bring a fresh suit subject to the law of limitation; (2) he may apply for an order to set aside the dismissal and if he satisfies the Court that there was sufficient cause, the Court may set aside the dismissal and may proceed further with the suit.

Rule 5 of Order 9, on the other hand deals with the situation when after summons have been issued to the defendant and when it is returned unserved, the plaintiff fails for a period of one month from the date of the return of the summons to apply for the issue of a fresh summons. In such a contingency, the Court shall make an order that the suit be dismissed as against such defendant. However, before such an order is passed by the Court, if the plaintiff satisfies the Court about any of the three facts stipulated by Clauses (a), (b) and (c) of Sub-rule (1) of Rule 5 of Order 9, Court has power to extend time for making such application. Sub-rule (2) of Rule 5 provides that the plaintiff may bring a fresh suit subject to the law of limitation.

If Rule 4 and Rule 5 of Order 9 are put into juxta position, the following differences between the two provisions clearly emerge:

Rule 4, Order 9 Rule 5, Order 9

Under this rule 4, suit is already dismissed under rule 2 for plaintiffs failure to lake necessary step for issuance of summons or rule 3 for failure of either party to appear when the suit is called out.

The dismissal of the suit under rule 5, is yet to take place after the summons is returned unserved Upon the defendant.

The plaintiff has two remedies: (a) he may bring a fresh suit subject to the law of limitation; (b) he may apply for an order to set aside the dismissal of the suit.

The plaintiff has two remedies available: (a) he can apply for issuance of fresh summons within a period of one month from the date of the return of the summons;

(b) the plaintiff clan also within one month by making an application satisfy the Court that he has failed after using his best endeavour to discover the residence of the defendant who has not been served, or that the defendant is avoiding the Service of process or that there is any other sufficient cause for extending time and the Court may extend the time for making such appplication.

The plainiiff has remedy of applying for setting aside the order of dismissal of the suit on his showing sufficient cause for his non-appearance or for not taking necessary steps expected of him under Rule 2.

Plaintiff has no such remedy of applying for setting aside the dismissal of the suit though under sub-rule (2) of rule 5, plaintiff has remedy of bringing a fresh suit subject to the law of limitation.

4 On failure of the plaintiff under Rule 2 or 3 ihc power of the Court is discretionary as it is stipulated that the Court may make an order dismissing the suit.

Rule 5 stipulates that on failure of the plaintiff to apply for issue of a fresh summons within a period of one month and on its failing to satisfy the Court, the Court shall make an order that the suit be dismissed.

Under Rule 4, on an application being made to set dismissal aside and on sufficient cause being shown, the Court shall set aside the dismissal.

Since there is total lack of power, question of setting dismissal aside does not arise.

From the aforesaid points of distinction between two provisions when put into juxta position, there is no manner of doubt that where on the day fixed it is found that summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the Court-fees or postal charges chargeable for such service (Rule 2, Order 9) or where neither party appears when the suit is called on for hearing (Rule 3, Order 9), the Court may make an order that the suit be dismissed but under Rule 4, over and above the remedy of bringing a fresh suit, the plaintiff is expressly provided a remedy to apply for an order to set dismissal aside and if he satisfies the Court that there was "sufficient cause" for such failure as referred 40 Rule 2 or for his non-appearance, the Court shall make an order setting aside the dismissal. Such a plaintiff has two remedies which are not mutually exclusive. When contrasted with Rule 5 which provides for dismissal of suit where plaintiff, after summons is returned unserved, fails for a month to apply for a fresh summons, the Court shall make an order that the suit be dismissed as against such defendant unless the plaintiff has within the said period applied to the Court. Initially, this period to apply to the Court for afresh summons was one year which came to be reduced to a period of three months and which after Amendment Act, 1976 came to be reduced to one month. The intention of the Legislature is to see that the plaintiff must be vigilant enough to effect service of summons of his suit on the defendant and if after summons is returned unserved, he fails for a period of one month to apply for a fresh summons, the consequences stipulated by Rule 5 shall follow. The command of Rule 5 is that once the plaintiff has failed to apply for a fresh summons unserved, the suit shall be dismissed. Apparently from the language of. Rule 5 as contrasted with language of Rule 4, it appears that in the eventuality of Rule 5, the Legislature never wanted to provide the remedy of setting dismissal aside as provided in the eventuality contemplated by Rule 4. When default occurs under Rule 5, Order 9 of the C.P. Code, it is submitted before this Court, that the Court is left with no discretion but Court shall make an order that the suit be dismissed. It is submitted that the provision is mandatory and Court shall have to dismiss the suit on failure of the plaintiff to comply with Rule 5.

In the context of aforesaid question of interpretation of provisions of Rule 5 of Order 9, it would be useful to refer to a decision of P.B. Mukharji, J. of Calcutta High Court in the case of Shaw and Co. Vs. B. Shamaldas and Co., . Before the learned single Judge, the plaintiff instituted the suit for libel against the defendant on 7-9-1950. The writ of summons was issued and it was made returnable on 29th Nov. 1951. Approximately, for a period of 9 months, the plaintiff took no steps to have the summons served. For the first time on 7-7-1953, the plaintiff applied ex parte for issuance of fresh summons for extension of returnable date of fresh summons and for leave to serve the defendant by Registered Post. The fresh summons by Registered Post was served upon the defendant and they applied to the Court for dismissal of the suit under Order 9, Rule 5 of the C.P. Code. On this fact, it was contended before the Court that as the fresh summons was not applied for within a period of three months from the return of the summons unserved on the defendant, the law requires that the Court shall dismiss the suit. In this connection, Justice P.B. Mukharji made following pertinent observations:

"Order 9, Rule 5, Civil P.C. provides a rule of limitation. Its command is that when the summons is returned unserved, plaintiff''s failure to apply for a fresh summons within three months from the dale of such return of unsuccessful service will entail the penalty of dismissal of his suit. When that default occurs, the Court is left with no discretion but shall make an order that the suit be dismissed. The limitation, therefore, is three months. If within that three months, the plaintiff applies for fresh summons, he has to satisfy the Court that either (a) he failed after using his best endeavours to discover the residence of the defendant who has not been served, or (b) such defendant is avoiding service, or (c) any other sufficient cause for extension of time. If he does so satisfy the Court, the Court ''may'' extend the time.

This provision of the Civil P.C. underwent amendment in two significant particulars by the amending Act 24 of 1920, to which reference may be made to emphasise the significance of the change in the law. One was that the former period of one year was substituted by ''three months'', and the other was that the previous discretionary power of the Court following from the former words ''may make an order'' was replaced by a mandate upon the Court by the present words ''shall make an order''. The argument, therefore, is that as the application for fresh summons was made in this case more than three months after the Sheriffs return, the suit must be dismissed under Order 9, Rule 5 of the Code."

The contention that Order 9, Rule 5 of the Code on a proper construction means that not taking of action for three months has no doubt to be explained on the ground stated there, but that the application need not be made within that three months and that the grounds of satisfaction only must relate to explaining inaction for the crucial three months, was negatived by the learned single Judge by making the following observations:

"I am unable to uphold this argument. The language appears to me to be clear (o suggest that the satisfaction of the Court on the grounds stated in (a), (b) and (c) of Order 9, Rule 5(1) has to be achieved within the period of three months and not afterwards. The words are ''the plaintiff has ''within the said period'' satisfied the Court''. Accordingly to my interpretation of Order9, Rule 5 the position is that if there is a failure of the plaintiff to apply for a fresh summons and to satisfy the Court within such period of three months to condone such failure on the grounds stated in (a), (b) and (c) of Order9, Rule 5(1), then the consequence is that the Court shall make an order that the suit be dismissed as against the unserved defendant.

In other words, the plaintiff must not allow the period of three months from the date of the return of the unsuccessful service to expire without making first an application and also secondly, without satisfying the Court within that period of time on the grounds stated in (a), (b) and (c) of Order9, Rule 5(1) and if he does not do so then he incurs the penalty of dismissal thereunder. I am not unmindful of the fact that if the suit in this case is dismissed, the plaintiff will not be in a position to bring a fresh suit because such suit for libel is barred by limitation today. But that is a situation which the plaintiff has sought for himself by his own lack of diligence and noncompliance with Order9, Rule 5 of the Code."

While dealing with the purpose of object as to why the Rule 5 of Order 9 is enacted, Justice P.B. Mukherji made following observation:

"14. To my mind, this provision in Order9, Rule 5, Civil P.C. is a very wholesome and salutary provision intended to activate laggard plaintiffs, who after presenting a plaint take no further interest in the suit which they have instituted, and the result very often is that there is a lot of dead wood provided by these idle claims which the plaintiffs do not choose to prosecute. Expedition in litigation is today a live problem and the legal climate is ringing with the cries for many real and facied reforms. Here, I find an existing rule of great efficacy to serve that purpose but forlorn and fitfully remembered so that its utility is not as frequently availed of as it should be."

In the case of Setabi Devi v. Ramdhani Shaw reported Cal 60, the learned single Judge was called upon to decide the question as to whether a defendant against whom the suit of the plaintiff is dismissed under Order 9, Rule 5 for non-service of summons can be impleaded by exercising'' powers under Order 1, Rule 10(2) of C.P. Code. In this context, it was observed that by allowing the person to be added as party after the order of dismissal under Order 9, Rule 5 against him, there will not be two inconsistent decrees. The order dismissing the suit under Order 9, Rule 5 against the defendant for non-service of summons on him is not a decree because it does not adjudicate any question in controversy between the parties in the suit. It was noted that Order 9, Rule 5 of the C.P. Code also expressly reserves the right of plaintiff to institute a separate suit subject to the question of limitation. The Court found that the object of Order 9, Rule 5 of the C.P. Code was to penalise the plaintiff for his default in serving summons on a defendant.

From the aforesaid decisions of Calcutta High Court, it becomes clear that the object of Order 9, Rule 5 of the C.P. Code is to activate laggard plaintiff, who after presenting the plaint takes no further interest in the suit so as to see that the opposite party is expeditiously served with the summons of the suit. Such plaintiff is responsible for delaying justice in his own cause. Inordinate delay in the courts of law is a matter of concern in today''s administration of justice. Expedition in litigations is a live problem. A slack or sluggish, lethargic negligent or indifferent or non-vigilant plaintiff is intended to be discouraged as law does not want to help those who do not want to help themselves. If this object is kept in mind, it may be said that the provisions of Rule 5, Order9 of the C.P. Code, should be strictly construed and applied and they are mandatory so as to leave no option to the Court but to dismiss the suit once non-compliance of Order 9, Rule 5 of the C.P. Code is noticed.

Secondly, the legislative history of this provision is also indicative of the fact that legislature intended the plaintiff of the suit to be extra-vigilant. It is rightly noticed by Justice P.B. Mukherji of Calcutta High Court that under the Old Code, the requirement was that when the summons was returned unserved, the plaintiff was expected to apply for a fresh summons within one year. This requirement underwent change by Amendment Act 24 of 1920. By such amendment period of one year within which the plaintiff can apply for the issuance of fresh summons to the defendant was substituted by three months. The second change which was brought about by Amendment Act 24 of 1920 was that the previous discretionary powers of the Court given under the Old Code, flowing from the former words "may make an order" was replaced by a mandate upon the court by the present words "shall make an order". From the aforesaid history of legislative amendment in this very provision coupled with the fact that by Amendment Act of 1976, the period to apply for fresh summons is reduced from a period of one months it can be said that perhaps the legislature intended to be strict with erring plaintiff. In the provisions of the Old Code by use of the word "may make an order to dismiss a suit" the legislature left judicial discretion with the Court. The Court has the discretion to dismiss or not the suit for failure of the plaintiff to apply for a fresh summons under Order9, Rule 5 of the C.P. Code. However, by amending such provision by amendment Act of 1920, the legislature has employed virtually mandatory language by using the words "shall make an order to dismiss the suit". Ordinarily, the use of word "shall" as contrasted with the use of the word "may" is indicative of the fact that the legislature intends the provision to be obligatory or mandatory, mandating the court to do positive act. In the context of Order 9, Rule 5, therefore, it is submitted that Court has no option but to dismiss the suit of the plaintiff who fails to apply for issuance of fresh summons within 30 days after summons is returned unserved on the defendant. It may be noted that at this stage that in the case of Jaywant S. Kulkarni and others Vs. Minochar Dosabhai Shroff and others, the Apex Court held that if the world "shall" has been substituted for the word ''may'' by an amendment, it will be very strong indication that use of "shall" makes the provision imperative.

The consequences of adopting aforesaid process of interpretation are very drastic. The plaintiff of such a suit has no remedy to apply for restoration of suit after setting the dismissal aside. The only remedy with the plaintiff is to file a fresh suit subject to law of limitation. Therefore, on the date when order under Rule 5, Order 9 is passed dismissing the suit of the plaintiff or subsequent thereto, if the suit is or gets barred by limitation, the plaintiff will be totally non-suited. He will have no remedy whatsoever. This is so not because on merits plaintiff has no case or because defendant has strong defence. This happens because of the inaction, slackness, legthargy or indifference on the part of the plaintiff. The consequences to flow are so drastic and irredressable that this Court shall have to think as to whether despite employment of the words "shall dismiss the suit", it is open to the Court to hold that the court still has discretion to be exercised judiciously. The C.P. Code is procedural law. There does exist a distinction between substantive law and procedural law. The intention of adjective law is to facilitate justice and further its ends. The rules of procedure are intended to be a handmaid to the administration of justice and they must, therefore, be construed liberally and in such a manner as to render enforcement of substantive right effective Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, . Therefore, it is said that a court should not adopt a hyper technical view in interpreting procedural law. A party cannot be refuse just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of the procedure. The principles underlying interpretation of procedural laws have been succinctly laid down by the Supreme Court in the case of The State of Punjab and Another Vs. Shamlal Murari and Another, , wherein Justice Krishna Iyer for the Apex Court observed (at p 1179 of AIR):

"We must always remember that procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been, wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance though procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product of technicalities."

Keeping the aforesaid observations in mind and also keeping in mind the fact that Rule 5 of Order 9 the C.P. Code is simply a procedural law prescribing procedure of service of summons on the defendant and consequences for failing to apply for a fresh summons, the Court shall have to keep in mind the fact that drastic result of total non suiting the plaintiff is perhaps not intended by the legislature.

It is pertinent to note that under Rule 2 of Order 9, when summons has not been served upon the defendant in consequences of the failure of the plaintiff to pay either the court fees or postal charges or to present copies of the plaint, the court is empower to dismiss the suit. Since the provision is merely an enabling provision, the legislature has given discretion to the court by using the word "the court may make an order that the suit be dismissed." It is not obligatory upon the court to dismiss the suit. However, when the summons is returned unserved upon the defendant and plaintiff fails for one month to apply for a fresh summons, or fails to apply for the issuance of a fresh summons, the legislature has by using different language stipulated that "the court shall make an order" that the suit be dismissed as against such defendant". The use of the word "shall" in Rule 5 when contrasted with the use of word "may" in Rule 2, prima facie suggests that the legislature was conscious of the fact that under Rule 5, it was not leaving any option to the Court and it was simply obligating the, court to dismiss the suit, while under Rule 2, it was leaving the matter to the discretion of the Court. If we now turn to the consequences which may entail, it becomes clear that consequences under Rule 5 are very drastic. If limitation for fresh suit has expired, he is totally non-suited. Under Rule 4 of Order 9, the plaintiff has the remedy of bringing a fresh suit (subject to the law of limitation) which is also the remedy available to a plaintiff against whom the order is passed under Rule 5 of Order 9. To that extent, the legislature has not distinguished between the dismissal of the suit under Rules 2 and 3 of Order 9 or Rule 5 of Order 9 of the C.P. Code. However, the second remedy available to the plaintiff under Rule 4 of Order 9 to apply for an order to set the dismissal aside on showing the sufficient cause to the court is not available to the plaintiff under Rule 5. This remedy is effective as the plaintiff can apply to the court for setting aside the dismissal in case where fresh suit is barred by limitation. The omission to provide for second remedy under Rule 5 is deliberate and purposive. The legislature never wanted the remedy to be available to the plaintiff who has not been vigilant enough to take steps for service of summons on the defendant after such summons is returned unserved.

However, the question is as to whether such a plaintiff whose suit is dismissed under Rule 5 of Order 9 and for whom institution of a fresh suit is barred by the limitation is rendered helpless without any remedy whatsoever. In view of the clear distinction in the language employed in Rule 4 and Rule 5 of Order 9 of the C.P. Code, in my opinion, it shall have to be held that such a plaintiff does not have the second remedy of applying to the court for setting the dismissal aside. The question then is as to whether such procedural defect must result in the dismissal of the suit of the plaintiff who has initially instituted the suit within the prescribed period of limitation. Should such plaintiff be totally nonsuited? Can position of such plaintiff be protected by interpreting the word "shall make an order that the suit be dismissed as directory"? In other words, the question which is required to be considered is as to whether provisions of Rule 5 of Order can be interpreted as directory and not as mandatory. If they are interpreted as directory so as not to compel the court to dismiss the suit of the plaintiff in the eventuality of default stipulated by Rule 5, in my opinion, the rigours of Rule 5 will be reduced and legislative intent of keeping a check on such defaulting plaintiff will be subserved. The rules of procedure are the handmaid of justice and they are enacted to supplement the cause of justice and not to supplant the cause of justice. In my opinion, by interpreting the Rule 5 of Order 9 as directory, the same result could be achieved as is achieved by Rule 4 of Order 9.

Therefore, while interpreting language of Order 9, Rule 5 of the C.P. Code as directory, in my opinion this Court can in its revisional jurisdiction interfere with order dismissing the suit of the plaintiff as such order would result into defeating and subverting justice rather than doing justice. From the application tendered by petitioner-plaintiff on the very day for restoration of the suit and setting aside the dismissal it becomes clear that there was "sufficient cause" which would justify extension of time and issuance of fresh summons on the defendant and, therefore, the learned Chamber Judge did not act judiciously with the desire to do justice, but rather acted with the object of disposing of a docket, least realising thereby that he was totally nonsuiting plaintiff. Such an order in case of totally negligent and indifferent plaintiff who has been found sleeping over his right (as was the case before the Calcutta High Court), undoubtedly, the order of dismissing the suit is absolutely essential and must be passed, but to pass such order non-suiting plaintiff on the very first occasion after summons on the defendant was returned unserved, in my opinion, would amount to injudicious exercise of power. It would render a wholesome and salutary provision into a machine of oppression. Therefore, while holding that provisions of Order 9, Rule 5 of the C.P. Code are directory, in my opinion, the Court shall have to exercise the powers judiciously.

In view of the aforesaid discussion, it is clear that the summons on the defendant was returned unserved since 14th Oct. 1988. As stipulated, the plaintiff has failed for a period of one month from the date of the return of the summons to the court to apply for issuance of fresh summons. Within such period, the plaintiff has also not satisfied the court that he has failed after using his best endeavours of discovering the residence of the defendant who have not been served or such defendant is avoiding services of process or there is any other sufficient cause for extending time. In fact, there is no application made by the plaintiff under Rule 5 for extension of time. The learned Chamber Judge of the City Civil Court, therefore, proceeded to pass the order to dismiss the suit on 14th Dec. 1988. This order is undoubtedly, passed by the learned Chamber Judge under Rule 5 of Order 9 of the C.P. Code. On literal and technical interpretation, he has power to pass such an order. The application given by the plaintiff through his advocate subsequently on that very day to set the dismisssal aside and to restore the suit to file was not maintainable. The learned Chamber Judge was right in holding that under Rule 5 of Order 9 of the C.P. Code, there is no provision for setting aside the dismissal of the suit. The order of learned Chamber Judge of the City Civil Court, therefore, cannot be faulted or set aside on the ground that he has power to restore the suit to file.

However, in my opinion, on interpretation of Rule 5 Order 9, the learned Chamber Judge of the City Civil Court was not justified in dismissing the suit. The provision of Rule 5 of Order 9 are simply enabling provision giving discretion to the court to dismiss the suit. Viewed from that angle, it was not obligatory upon the Chamber Judge to dismiss the suit on 14th Dec. 1988 when the matter was posted before him with endorsement that summons to the defendant is returned unserved since 14th Oct. 1988, In the application for setting aside the dismissal filed by, the plaintiff, the cause is shown by the advocate of the plaintiff as, to how there was lapse on the part of the plaintiff in moving the court within 30 days. On the date of the return of the summons, the clerk of the advocate of the plaintiff has by mistake wrongly noted that the summons were already served and that application for adjournment is received. In fact, this wrong endorsement was made in connection with another suit number. It is this mistake committed by the clerk of the advocate of the plaintiff that the plaintiff failed to take action within 30 days as stipulated by Rule 5 of Order 9. Therefore, the court could have entertained such application and could have passed order which could be passed under Order 9, Rule 5 of the C.P. Code. Since the Court has discretion in the matter, dismissal of the suit was not justified and, therefore, the order passed by the learned Chamber Judge on 14th Dec. 1988 dismissing the suit under Order 9, Rule 5 is required to be quashed and set aside, is hereby quashed and set aside. The suit is directed to be placed before the Chamber Judge of City Civil Court with further direction to the plaintiff to apply to the City Civil Court for issuance of a fresh summons to the defendant.

The Rule is made absolute. No order as to costs.