The State of Punjab and another vs Gama

J.V. Gupta, J.—The Plaintiff-Respondent, who is not present, inspite of issuance of actual data notice, obtained an ex parte decree against the Punjab State on 19th October, 1983 An application for setting aside the same was filed but the same was dismissed for want of prosecution vide impugned order dated 11th October, 1984. Dissatisfied with the same, the Punjab State filed this petition in this Court.

After hearing the Learned Counsel for the Petitioner, I find that there was no occasion for dismissing the application simply because the process fee was not filed for the second time. One more opportunity should have been allowed to do needful. There is no finding by the trial Court that the process fee was not filed with an ulterior motive or the State of Punjab was interested in any way in delaying the service on the Respondent.

Consequently, the petition succeeds, the impugned order is set aside and the application is sent back to the trial Court for proceeding with the application filed on behalf of the State in accordance with law The Petitioner has been directed to appear in the trial Court on 12th August, 1985, and also to pay the process fee on that date. The records of the case be sent back forthwith

It may be pointed out that though Order 9 Rule 2 CPC provides for dismissal of the suit where summons is not served in consequence of Plaintiff''s failure to pay the court-fee or postal charges for service but that does, not mean that the court is not to exercise. its discretion judiciously under the said rule. The suit is to be dismissed under very special circumstances.