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2007 DIGILAW 1022 (MAD)

A. Chinnaiya v. Amirtham & Others

2007-03-22

S.RAJESWARAN

body2007
Judgment :- The 2nd defendant in O.S.No.99 of 2000 is the revision petitioner before this Court. 2. The first respondent herein as plaintiff filed O.S.No.99 of 2000 against the revision petitioner (who is the second defendant) and the second respondent and 3rd respondent (who are defendants 1 and 3 herein) for a permanent injunction restraining the defendants from interference with the plaintiffs peaceful possession and enjoyment of the suit schedule property, which is being used by the plaintiff as a pathway. Second and 3rd respondents herein (who are first defendant and 3rd defendant before the trial Court) entered appearance in the suit and are defending the suit. 3. In so far as the revision petition is concerned, who is the second defendant, the suit was dismissed against him on 20.11.2001 as no steps were taken by the plaintiff for applying for fresh summons. Therefore, the plaintiff filed I.A.No.167 of 2004 to set aside the order-dated 20.11.2001 and to restore the suit against the revision petitioner. I.A.No.167 of 2004 was seriously opposed by the revision petitioner by filing a detailed counter, wherein it was specifically stated that the restoration petition was filed on 01.03.2004 only whereas the order of dismissal was passed on 20.11.2001 and no application was filed by the plaintiff under Section 5 of the limitation Act to condone the delay of 2 -1/2 years. The trial Court by order dated 04.08.2004 allowed I.A.No.167 of 2004 and aggrieved by the same, the above C.R.P. has been filed under Article 227 of the Constitution of India. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent. I have also gone through the documents and the Judgements referred to by them in support of their submissions. 5. The facts are not in dispute. The suit was dismissed by the trial Court against the revision petitioner on 20.11.2001 for not taking steps to issue fresh summons to second defendant, the revision petitioner herein Under Order 9 Rule 5 of C.P.C if the plaintiff fails, for a period of one month from the date of return of summons, to apply for the issue of fresh summons, the Court shall make an order that the suit be dismissed as against such defendant. 6. Order 9 Rule 5 is extracted below for proper understanding: ORDER IX RULE 5. "Rule 5. 6. Order 9 Rule 5 is extracted below for proper understanding: ORDER IX RULE 5. "Rule 5. Dismissal of suit where plaintiff, after summons returned unserved, fails for three months 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 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 than 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. 7. Admittedly, I.A.No.167 of 2004 was filed by the plaintiff on 01.03.2004 only, when the trial Court dismissed the suit on 20.11.2001 itself and therefore I.A.No.167 of 2004 is clearly barred by limitation. But the learned counsel for the first respondent submitted that an application was infact filed to condone the delay of 803 days in filing the application to set aside the order of dismissal dated 20.11.2001, but the same was returned by the Court with an endorsement that Section 5 petition is not maintainable as the suit is still pending. That being so, the trial Court has erred in law in allowing I.A.No.167 of 2004 without deciding the condone delay petition filed by the first respondent herein. Infact, the copy of the affidavit and the petition filed by first respondent under Section 5 of the Limitation Act was produced before this Court to substantiate the case of first respondent. A perusal of the same would also reveal that such an application has been filed by the first respondent and a copy of which has also been served on respondent 2 and 3 herein who are the defendant 1 to 3 before the trial Court. 8. A perusal of the same would also reveal that such an application has been filed by the first respondent and a copy of which has also been served on respondent 2 and 3 herein who are the defendant 1 to 3 before the trial Court. 8. In AIR 1979 Calcatta 8 (Electrical Industries Corporation V. Punjab National Bank and others) a Division Bench of Calcatta High Court held as follows. Para 14. O.9, R.5 (1) therefore provides that when a summons is returned unserved, the plaintiff has to make an application within three months from the date of the return for issue of a fresh summons. Alternatively, the plaintiff within the said period of three months may apply to the Court for extension of time for making an application for issue of a fresh summons on the grounds specified in the above order. If the plaintiff does not choose to adopt any one of these courses, the Court shall make an order that the suit be dismissed. Para 15. In the instant case, there is no dispute that the plaintiff failed to take any of the steps envisaged by O.9 Rule 5(1) of the Code within the specified period. It was argued before us that we should invoke the provisions of Sec.5 of the Limitation Act to condone the delay in making the application for issue of a fresh summons. Under S.5 of the Limitation Act, 1963, the applicant must satisfy the Court that he had sufficient cause for not making his application within the period prescribed. 9. In AIR 1996 Gujarat 107 (Shree Sanand Textile Industries Ltd. And another, Vs. Naranji Peraj Transport Co.,) the Gujarat High Court held that the provisions of Order 9 Rule 5 of C.P.C are directory and the Court shall have to exercised the power judiciously. 10. In 1997 (1) L.W. 279 (Ipour J. Balraj V. Veenus Chit Fund and Finance Corporation, rep. by its Manager Partner and others) this Court held that once a matter is dismissed for default within a reasonable period, the application to set aside the order of dismissal ought to have been filed. 11. 10. In 1997 (1) L.W. 279 (Ipour J. Balraj V. Veenus Chit Fund and Finance Corporation, rep. by its Manager Partner and others) this Court held that once a matter is dismissed for default within a reasonable period, the application to set aside the order of dismissal ought to have been filed. 11. This decision was rendered by this Court in the light of Order 9 Rule 4 and Article 2262 of the French Civil Court by holding that even if limitation does not arise as per Article 2262 of the French Civil Court for setting aside the exparte decree, it is the duty of the party to explain why there was three years delay in applying for the restoration of the suit. 12. In the present case, the plaintiff has filed the restoration petition on 01.03.2004 by filing a petition under Section 5 of the Limitation Act and the same ought not to have been returned by the trial Court instead should have taken it on file and disposed it of the same on merits. But without doing so, the trial Court has straight way allowed I.A.No.167 of 2004 by setting aside the order of dismissal passed against the revision petitioner, which in my opinion is not correct and therefore, I am inclined to interfere with the order of the trial Court. 13. In the result, this Civil Revision Petition is allowed and the order of the trial Court is set aside. I.A.No.167 of 2004 is remanded to the trial Court for fresh disposal, after taking the application filed by the first respondent herein under Section 5 of Limitation Act to condone the delay of 803 days and disposing the same on merits. The first respondent is directed to re-present the returned I.A. Within 15 days from the date of receipt of a copy of this order and if the same is filed within the stipulated time, the trial Court has to consider that petition first and only on that basis order to be passed on merits in I.A.No.167 of 2004. No Cost. Consequently, connected M.P. is also closed.