Judgment Raj Kishore Prasad, J. 1. The plaintiff has filed this application in revision against the order dated 30th March, 1954, of the 2nd Munsif of Darbhanga, exercising Small Cause Court powers refusing to restore the plaintiffs suit, which had been dismissed for default on 15th January, 1954. 2. The plaintiff brought a Small Cause Court suit for recovery of a sum of Rs. 136/- on the basis of a hand-note dated 30th November, 1950, alleged to have been executed by the defendant in favour of the plaintiff. , The suit was instituted on 30th November, 1953. Along with the plaint the plaintiff filed the process fee, written processes and a copy of the plaint, but by mistake the correct forms were not filed. Instead of filing the forms of summons for the final disposal of the suit as required by the proviso to Rule 5 of Order 5 of the Code of Civil Procedure, the plaintiff filed the forms of summons for the settlement of issues. On 4th December, 1938, the plaint was admitted, and 14th December, 1953, was fixed for filing the correct forms. No step was taken on 14th December, 1953, and, therefore, the plaintiff was given more time, till 22nd December, 1953. for compliance with the above order. This order was communicated to the lawyer of the plaintiff on 15th December, 1953. In spite of this fact, the correct forms of summons were not filed, and, therefore, on 22nd December, 1953, the Court below adjourned the suit to 6th January, 1954 for taking steps. The Court further directed that the plaintiffs pleader should be informed of this order. It appears from the order sheet of the Court below that the pleader was not informed of the order passed on 22nd December, 1953, and in spite of being, informed of the earlier order, he did not take step even on 6th January, 1954. The suit was, therefore, adjourned to 15th January 1954, for disposal, and the Court again directed that the pleader of the plaintiff should be informed. The pleader of the plaintiff was not available, as appears from a note on the order sheet and therefore, he could not be informed. No step, however, was taken even on 15th January, 1954, and, therefore, the suit was dismissed for default. The pleader of the plaintiff was not available, as appears from a note on the order sheet and therefore, he could not be informed. No step, however, was taken even on 15th January, 1954, and, therefore, the suit was dismissed for default. The plaintiff, thereafter, on 18th February, 1954, made an application under Order 9, Rule 4, Code of Civil Procedure, for setting aside the order of dismissal for default passed on 15th January, 1954. on certain grounds. This application has been rejected by the Court below on the ground that the plaintiff has been negligent from the very beginning, as appears from the facts stated above, and, therefore, he was not entitled to the indulgence of the Court. The Court below did not discuss the evidence adduced in the case in support of the application for restoration. The learned Munsiff only said that the evidence adduced did not convince him, and he was not satisfied with the cause shown. He, therefore, rejected the application of the plaintiff for restoration of the suit. The plaintiff has moved this Court in revision against this order. 3. This application is not opposed, as there" is no appearance on behalf of the opposite party. 4. Mr. Shreenath Singh, appearing for the petitioner, has submitted : (1) that the Code of Civil Procedure docs not cast any duty on the plaintiff to file forms of summons for issue of the summons in the first instance, (2) that the Court below had no jurisdiction to dismiss the suit before fixing a date for the appearance of the defendant, and (3) that the Court below has not considered the evidence, or even his application giving the reasons due to which there had been a default on the part of the plaintiff. I shall deal with the points in turn. 5. As regards the first contention, Mr. Shreenath Singh has placed before me the relevant pro-visions of the Civil Procedure Code, General Rules and Circular Orders, and the Patna High Court Rules, in support of his contention that the Civil Procedure Code does not enjoin the plaintiff to file the forms of summons for issue of the first summons to the defendant for his first appearance. Shreenath Singh has placed before me the relevant pro-visions of the Civil Procedure Code, General Rules and Circular Orders, and the Patna High Court Rules, in support of his contention that the Civil Procedure Code does not enjoin the plaintiff to file the forms of summons for issue of the first summons to the defendant for his first appearance. Before I discuss the relevant provisions of the law placed before me, it should be borne in mind what their Lordships of the Supreme Court have said in the case of Sangram Singh V/s. Election Tribunal, Kotah, (1955) 2 SCR 1 at p. 8: ((S) AIR 1955 SG 425 at p, 429) (A), regarding the provisions of the Code of Civil Procedure. His Lordship Bose, J. in delivering the judgment observed: "Now a code of procedure must be regarded as such. It is procedure, some tiling designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (Provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it." 6. Bearing in mind the above principle of their Lordships, let me now examine the Code. Sec.27 of the Code of Civil Procedure, provides that where a suit has been duly instituted, a summons may be issued to the defendant to appear, and answer the claim, and may be served in manner prescribed. I may now turn to the rules of the first schedule. It is relevant to note that the rules draw a distinction between the first hearing and subsequent hearings, and that the first hearing can be either (a) for settlement of issues only, or (b) For final disposal of the suit. Order 4, Rule 1 (1) provides that every suit shall be instituted by presenting a" plaint to the Court, or such officer as it appoints in this behalf. Order 5, Rule 1 (1) provides that when a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified. Order 5, Rule 1 (1) provides that when a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified. The summons must state, as required by Rule 5 of Order 5, whether the hearing is for settlement of issues only, or for final disposal of the suit. The proviso to Rule 5 provides that in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit, which means for final hearing of the suit. In. either case, as I have stated before, the day on which the defendant is to appear, and answer the claim, has to be specified therein. Then comes Order 8, Rule 1 which expressly speaks of the "first hearing". Order 9 is headed "appearance of parties and consequences of non-appearance. Order 48, Rule 1 provides that every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs. It further provides that the court-fee chargeable for such service shall be paid within the time to be fixed before the process is issued. Rule 3 of Order 48 further provides that the forms given in the appendices, with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned. Rule 9 of Order 7 provides that if the plaint is admitted, the plaintiff shall present as many copies on plain paper of the plaint as there are defendants. Rule 1, Chapter 1 of Part V of the General Rules and Circular Orders of the High Court of Judicature at Patna, Civil, Volume I, provides the table of fees which shall be charged for serving and executing the several processes. On a review of the relevant provisions of the Code it appears that there is no provision which provides the filing of the Written forms of summons by the plaintiff, like the copies of the plaint, popularly known as musannas in the district Courts, and the process fee. Even in the General Rules and Circular Orders there is no provision for filing such forms by the plaintiff for the first appearance of the defendant. either along with the plaint, or subsequently. Even in the General Rules and Circular Orders there is no provision for filing such forms by the plaintiff for the first appearance of the defendant. either along with the plaint, or subsequently. Rule 4 (1) of Chapter 2 of Part I of the General Rules and Circular Orders provides that with every application for the issue of process, parties shall file the necessary number of printed forms of the same duly filled up in bold, clear and easily legible writing leaving the date of appearance and the date of the process blank. Clause (2) of the said rule provides that the parties or their pleaders shall sign the forms in the left bottom corner and will be held responsible for the accuracy of the information entered therein. This Rule 4 obviously refers to the circumstances mentioned in Rule 5 (1), Order 9 of the Code. Rule 5 (1) of Order 9 of the Code provides that where after a summons has been issued to the defendant and returned un-served, the plaintiff fails, for a period of three months from the date of the return made to the Court, 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 on certain points mentioned therein. Rule 5 of Order 9, as has been pointed out by Mr. Singh, is the only provision which speaks of the plaintiff but it speaks of a fresh summons, and not the first summons making an application for the issue of a summons. Neither the General Rules and Circular Orders, Civil, Volume I, nor, the Code of Civil Procedure makes any provision directing the plaintiff to file the forms of summons for the first appearance of the defendant. Realizing this lacuna, the Calcutta High Court has amended Rule 9 of Order 7 of the Code. Clause (1) of Rule 9 has been cancelled, and has been substituted by new Clauses (1) and 1 (a). Clause 1 (a) of Rule 9 of Order 7, as amended by the Calcutta High Court, is as follows : "1 (a): the plaintiff shall present with his plaint ...... Clause (1) of Rule 9 has been cancelled, and has been substituted by new Clauses (1) and 1 (a). Clause 1 (a) of Rule 9 of Order 7, as amended by the Calcutta High Court, is as follows : "1 (a): the plaintiff shall present with his plaint ...... (ii) draft forms of summons and fees for service thereof." A similar provision is to be found in Rule 6 of Chapter 8 of Part II of the Patna High Court Rules also. Rule 6, Clause (2) provides that there shall be filed together with the court-fee the requisite number of the prescribed printed forms of such notice, duly filled up, the date of appearance and the date of the notice being left blank. Rule 6 of the Patna High Court Rules is on the same line as Rule 4 of the General Rules and Circular Orders is. After a review of the relevant provisions of the law on the point it seems to me that the contention of Mr. Singh is a substantial one. Obviously there is a lacuna in the Civil Procedure Code, .which has been taken notice of by the Calcutta High Court, but so far it has not come to the notice of this Court. This matter, therefore, requires consideration by the Rule making Committee to consider the desirability or otherwise of amending Order 7, Rule 9 on the line adopted by the Calcutta High Court. I may mention that the practice prevalent in the district Courts is that plaintiff has always to file, along with the process fee and the musannas, also the written forms of summons or notices, as the case may be. This practice has been in existence from such a long time that it has become almost a known fact to every litigant. But in spite of it, if the law has not specifically provided for the filing of such written forms of summons by the plaintiff for the first appearance of the defendant, I do not think it would be fair to penalize the plaintiff for his omission to file the correct forms of summons for the first appearance of the defendant. 7. In view of my above finding, it is not necessary to consider the. second contention of Mr. Singh. 7. In view of my above finding, it is not necessary to consider the. second contention of Mr. Singh. But I may mention that the order of the Court below does not give any indication as to the nature of the evidence adduced before the learned Munsif. He should have considered the evidence of the witnesses and then given his reasons for not accepting that evidence. Simply saying that the evidence does not convince him and he is not satisfied with the cause shown, without indicating in his order what the cause shown was, and, how that had been attempted to be established by the plaintiff in the evidence, it is not a proper disposal of the matter by the Court below. 8. As regards the last contention of Mr, Singh that the Court had no jurisdiction to dismiss the suit before fixing a date for the appearance of the defendant in the suit, in my opinion there is no substance in it. From the facts stated earlier, it will appear that the Court below had fixed 15th January 1954, for disposal of the suit, which meant the final hearing of the suit. He has relied on the case of Sripati Saran Prasad Singh V/s. Indrajit Mahton, AIR 1939 Pat 160 (B), in which it was held by James J. that the Court has no power to require a plaintiff to file process fees before fixing a date for the appearance of, the defendant. The plaintiff may elect, if he pleases, to secure the presence of the defendant without issue of process at all. The proper order is to fix a date for the appearance of the defendant and direct the plaintiff to file process fees within a reasonable time short of that date. If by the date fixed for the defendants appearance the defendant does not appear and the plaintiff has not paid the process fees, nor taken the necessary steps for issue of process, the suit is liable to be dismissed under Order 9, Rule 2 of the Code. If by the date fixed for the defendants appearance the defendant does not appear and the plaintiff has not paid the process fees, nor taken the necessary steps for issue of process, the suit is liable to be dismissed under Order 9, Rule 2 of the Code. But in my opinion, Order 9, Rule 2 deals with a subsequent stage, because Rule 1, Order 9, provides that on the date fixed for the summons for the defendant to appear and answer, the parties shall be in attendance at the Court house in person, or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. Rule 2, Order 9, provides that 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) chargeable for such service, the Court may make an order that the suit be dismissed. In the case of Bhuneswari Kuer V/s. Mt. Sama Kuer, AIR 1941 Pat 402 (C), Agarwala, J., distinguished the above case, and observed that the date fixed was for the disposal of the suit, that is to say, it was the date the Court fixed for hearing the parties. The reason why the defendants were not present in this case was that the process fees had not been paid. He, therefore, took the view that when a date is fixed for disposal of a suit, that means that that is the date for hearing of the parties. I respectfully agree with this observation o£ his Lordship. In the case of a Small Cause Court suit the summons, as provided by the proviso to Rule 5, Order 5 of the Code, as mentioned earlier, is always for the final disposal of the suit. There can be no final disposal of the suit unless the defendant gets a chance for appearing. In the case of a Small Cause Court suit the summons, as provided by the proviso to Rule 5, Order 5 of the Code, as mentioned earlier, is always for the final disposal of the suit. There can be no final disposal of the suit unless the defendant gets a chance for appearing. In my opinion, therefore, 15-1-1954, which was the date fixed in the suit was the date for disposal of the suit, that is to say, it was the date which the Court fixed for hearing the parties, and, the reason why the defendant was not present was that the correct forms had not been filed by the plaintiff, and, therefore, the summons could not be issued to the defendant. This contention of Mr. Singh, therefore, must be rejected. 9. In the circumstances of the present case, however, I feel satisfied that the order of dismissal should be set aside, and the suit should be restored to its file and disposed of in accordance with law. In the result the application succeeds, the order of the Court below is set aside, and the rule is made absolute. As there is no appearance on behalf of the opposite party, there will be no order for costs of this Court.