Madhya Pradesh High Court
Shri Vimalchand Jain (Dince Deceased) ... vs The Collector on 20 June, 2016
1
W.P.No.17962/2014
Writ Petition No.17962/2014
20.06.2016
Shri Rajeev Mishra, learned counsel for petitioners. Heard on admission.
Petitioners/plaintiffs take exception to order dated 26.09.2011 passed on an application under Order IX Rule 4 of the Code of Civil Procedure, 1908 (for short 'CPC') in MJC No.53/2005; whereby, the trial Court declined to restore Regular Civil Suit No.14-A/1994. The said suit was dismissed for non-compliance of Rule 2 of Order IX of CPC which mandates " 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 or postal charges, if any, chargable for such service, or failure to present copies of the plaint as required by rule 9 of Order VII, the Court may make an order that the suit be dismissed." Furthermore, Rule 9 of Order VII of CPC mandates "where the Court orders that the summons be served on the defendants in the manner provided in rule 9 of Order V, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are 2 W.P.No.17962/2014 defendants within seven days from the date of such order alongwith requisite fee for service of summons on the defendants." Similarly, Rule 9 Order V of CPC provides for "where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court." Conjoint reading of these provisions leaves no iota of doubt that when summons is issued to the defendant, it must be on the correct address. Present petitioner having failed to abide by the direction to pay process fee for issuance of summons on correct address of defendant, the trial court was justified in dismissing the suit under Rule 2 of Order IX of CPC.
In that event the plaintiff has remedy either to seek setting aside of order or to file a fresh suit as is provided under Rule 4 of Order IX of CPC. Since there was no error committed by the trial Court in dismissing 3 W.P.No.17962/2014 the suit under Rule 2 of Order IX of CPC, the impugned order passed by the trial Court does not suffer a jurisdictional error. No indulgence is, therefore, caused in a petition under Article 227 of the Constitution of India.
Consequently, petition fails and is dismissed. No costs.
(SANJAY YADAV) JUDGE anand