State Bank of India vs Prem Parkash Gupta

G.C. Garg, J.—The plaintiffbank filed a suit for the recovery of Rs. 22,701.52 poise only against Prem Parkash Gupta defendant. The trial Court by order dated 25.7.1989 dismissed the suit as the plaintiff had failed to pay process fee on 4/5 dates of hearing and for that reason the defendant could not be served. The suit was thus, dismissed for noncompliance of order directing the plaintiff to pay process fee for service of the defendant.

The plaintiff filed an application before the trial Court for restoration of the suit. It was contended before the trial Court that process fee had been filed on various occasions except on two dates, viz. 15.3.1989 and 10.5.1989 and that fresh address of the defendant could not be filed as he had left without address and in the absence of address, the process fee was not filed by the clerk of the counsel.

The learned trial Court by order dated 11.10.1989 refused to restore the suit and dismissed the plaintiff''s application. It is against this order that the present revision has been filed.

Notice of the revision petition was issued to the defendantrespondent but none has put in appearance in spite of service.

The learned counsel for the petitioner submitted that there is no ulterior motive on the part of the plaintiff not to file process fee on two occasions and rather the plaintiff having failed to get the fresh address of the defendant could not file the same on that account and that one more opportunity should have been granted to do the needful. It was further submitted that there is nothing on the record to show that the plaintiff was in any way interested in delaying the suit and that the Court has acted illegally and with material irregularity in not setting aside the order whereby the suit was dismissed for noncompliance of order.

After hearing the counsel for the petitioner, I find that there was no occasion for dismissing the application simply because the process fee had not been filed on two occasions. In the facts of the present case, one opportunity should have been allowed to the plaintiff to do the needful. It is not the finding of the trial Court that the plaintiff had some ulterior motive in not filing the process fee and that he was interested in delayed disposal of the suit which was filed for the recovery of money.

In my aforesaid view, I am supported by the observations of J.V. Gupta, J. (as his Lordship then was) in the State of Punjab v. Gama, 1985(1) PLR 706. It is most probable at process fee was not filed as the address of the defendant was not available with the plaintiff. It could not in the circumstances be said that the plaintiff was not pursuing the suit diligently or was negligent in the matter. In any case, the interest of justice requires that the plaintiff should be given another opportunity to file process fee and fresh address of the defendant so that the suit could proceed.

In view of the observations made above, I allow this revision petition, set aside the order under revision and restore the suit to its original number. The plaintiff through his counsel is directed to appear before the trial Court on 3.5.1991 and file process fee and fresh address of the defendant on that date or on such other date the Court may direct. Since there is no representation on behalf of the respondent, there will be no order as to costs.