Gujarat High Court
Doshi Ion Exchange And Chemical ... vs B. Shantakumar on 26 July, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/7880/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7880 of 2014
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DOSHI ION EXCHANGE AND CHEMICAL INDUSTRIES LTD.
Versus B. SHANTAKUMAR ========================================================== Appearance:
MR ISHAN MIHIR PATEL(6508) for the PETITIONER(s) No. 1 SERVED BY RPAD (N)(6) for the RESPONDENT(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 26/07/2018 CAV ORDER Heard learned advocate Mr.Ishan Mihir Patel for the petitioner. None appeared for the respondent though served.
2. The present petition filed under Article 227 of the Constitution, is directed against order dated 15th February, 2014 passed by City Civil Court, Court No.14, Ahmedabad, whereby Civil Miscellaneous Application No.705 of 2013 came to be rejected. The said was an application filed for setting aside order dated 17th July, 2013 of dismissal of Civil Suit No.1236 of 2006.
3. The attendant facts stated by the petitioner
- original plaintiff are inter alia that the petitioner instituted suit against the respondent - defendant, in which on 15th February, 2013 order was passed by the Court directing the plaintiff to remove Page 1 of 6 C/SCA/7880/2014 CAV ORDER the objections on or before 16th March, 2013. On 25th March, 2013 another order was passed to the same effect extending the date for removal of office objections till 20th April, 2013. On 20th April, 2013 the petitioner - original plaintiff gave an application to take up the proceedings on board for sending summons in the suit at the address which was supplied by the petitioner. The papers of the suit were not traceable on that day. As the case papers were missing on that day, the application was moved to provide new address of the defendant. At this juncture, the plaintiff came to know that the suit was dismissed for default on 17th July, 2013.
3.1 On 26th August, 2013 the petitioner submitted an application under Order IX Rule 5 of the Code of Civil Procedure, 1908 for setting aside the dismissal of the suit and praying for restoration of the suit. This application came to be dismissed as per the impugned order on the ground that the same was not maintainable in view of the provisions of Order IX Rule 5, CPC.
4. The Court below noticed the facts and observed thus, "... ... ... Coming to the facts of the instant case, it is the say of the applicant herein that the original defendant could not be served with the summons of the suit for a long time and therefore the matter was kept in the Objection Board in order to remove the objection for non service of summons upon the defendant. That being so, from the order of the then Court below Exh.1 dated 2.5.2013, it is found that the then Court had provided an opportunity to the plaintiff to take further steps for service of summons upon defendant and the matter for that purpose was adjourned on 12.6.2013. Thereafter on Page 2 of 6 C/SCA/7880/2014 CAV ORDER 17.7.2013 the then Court has passed an Order below Exh.1 observing that as the plaintiff though given sufficient time has not taken further step for service of summons to the defendant and hence, the suit was dismissed for want of further process by the plaintiff. It is an admitted fact that the original defendant could not be served for a long time as address could not be found. Thus, from the facts stated in the application and observation made by the then Court in its earlier order, it can be clearly said that the Learned Judge had passed the order of dismissal of the suit under the provisions of Order-9, Rule-5 of the Code of Civil Procedure, 1908. The applicant herein has intelligently tried to show from the language of the order passed by the then Court dated 17.7.2013 that as if an order under Order-9, Rule-2 is passed by the then Court. In fact, the order is not under Order-9, Rule-2. That being so, the initial order of the then Court dated 17.7.2013 being one under Order-9, Rule-5(1) of the Code, 1908, the present CMA is not maintainable in law."
4.1 The Court below further proceeded to hold, "... ... ... But, as observed earlier, this application itself is not maintainable for the sole reason that the then Court had not passed an Order under Order- 9, Rule-2 or 3 of the Code, 1908. Had that been a case, the judgment of the Hon'ble Orissa High Court would have surely been applicable to the present case. In the instant case the then Court had passed an Order-9, Rule-5 and therefore, Order-9, Rule-4 has no applicability to the present case. Order-9, Rule-5(2) makes it abundantly clear that a fresh suit may be brought obviously subject to the law of limitation. But, under no circumstance can an application lie for restoration of the suit."
5. Now, Order IX Rule 2 provides for dismissal of the suit where summons is not served in consequence of plaintiff's failure to pay the cost. Rule 4 of Order IX provides that the plaintiff may bring fresh suit or the court may restore the suit to file. This Rule says that where the suit is dismissed under Rule 3 or Rule 4, the plaintiff may, subject to limitation, bring a fresh suit. It is stated in the Rule that alternatively, the plaintiff may apply for Page 3 of 6 C/SCA/7880/2014 CAV ORDER an order satisfying the court that there was a sufficient cause for failure to comply with Rule 2, that is failure of serving of summons or paying the cost, the court may set aside the dismissal and proceed with the suit.
5.1 Rule 5 of Order IX deals with the suit where plaintiff, after summons returned unserved, fails to apply for fresh summons within seven days. It reads as under.
"Rule 5. Dismissal of suit where plaintiff, after summons returned unserved, fails for [seven days] a 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 a[seven days] from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of 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 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."
5.2 Now in the present case, as the dismissal of suit was on the ground of non-supply of the address, the court below has taken a view that since the order IX Rule 4 does not contemplate the eventuality of non-supply of address, and when the suit was Page 4 of 6 C/SCA/7880/2014 CAV ORDER dismissed on the ground of non-supply of address, the same could not be restored and that there was no provision. The court below further observed that at the best, in view of Order IX Rule 5(2), subject to law of limitation, fresh suit could be instituted by the plaintiff.
5.3 The Madras High Court in Paulraj v. The Branch Manager, Muthoot Fincorp being CRP (PD)(MD) No.332 of 2012 observed as under.
"No doubt, if the suit is dismissed for non-payment of batta by the plaintiff for getting the suit summons served, a fresh suit can be filed, but it does not mean that the Court has no power to restore the very same suit after recording sound reasons in the petition filed by the plaintiff for getting the suit restored."
6. Provision of Order IX and the Rules thereof are procedural. They may have been drafted in a particular language, still however, they remain procedural Rules. The procedure is hand made of justice and at the altar of procedural Rules, substantive rights of the parties could not be sacrificed. It could be submitted by the petitioner that by virtue of the impugned order the petitioner is rendered remediless. The object of prescribing procedure is to advance cause of justice.
6.1 Therefore, even if the ground of non-service of summons is not mentioned in Rule 4 of Order IX, it could not be gainfully said that because of that reason only, the Court was not empowered to restore the suit. Section 151 of the CPC would come to aid. Therefore, if the Court exercises powers to restore Page 5 of 6 C/SCA/7880/2014 CAV ORDER the suit which was dismissed on the ground of non- service of summons, it would not stand in conflict with the intent and object of Rule 4 of Order IX and shall stand supported by the object of provision of Section 151 in the Code.
7. As a result of above discussion, the impugned order dated 15th February, 2014 passed by learned Judge, City Civil Court, Court No.14, Ahmedabad, rejecting Civil Miscellaneous Application is set aside. Consequently, the Civil Suit No.236 of 2006 shall stand restored to be tried in accordance with law expeditiously.
The trial court shall ensure that the trial is concluded within a period of one year since the suit is of the year 2006.
(N.V.ANJARIA, J) Anup Page 6 of 6