Research › Search › Judgment

Punjab High Court · body

2023 DIGILAW 1120 (PNJ)

Paramjit Kaur v. Ranjit Singh

2023-03-22

ALKA SARIN

body2023
Judgment Mrs. Alka Sarin, J. The present revision petition has been filed challenging the order dated 25.05.2016 dismissing the suit of the plaintiff-petitioner qua defendant No.5 (respondent No.1 herein) for want of providing fresh address and the order dated 07.03.2017 whereby application for restoration of the suit qua defendant-respondent No.1 was also dismissed. 2. The brief facts relevant to the present lis are that the plaintiff-petitioner filed a suit for mandatory injunction for directing defendant-respondent Nos.2 to 4 to restore the possession of 4 ft. wide street as described in the plaint, as also for mandatory injunction directing defendant-respondent No.5 to restore the possession of 4 ft. wide street as described in detail in the plaint and further for mandatory injunction directing defendant-respondent No.1 herein to restore the possession of 4 ft. wide street as described in the plaint. Vide order dated 25.05.2016, as no written statement was filed on behalf of defendant-respondent Nos.2 to 5, their defence was struck off. It is noticed in the order that correct address of defendant-respondent No.1 herein had not been filed and that the plaintiff-petitioner herein despite availing numerous opportunities had not furnished the correct address for service of defendant-respondent No.1 and hence the suit was dismissed against defendant-respondent No.1 for non-prosecution. Subsequently, an application for restoration of the suit qua defendant-respondent No.1 was filed which application was also dismissed vide order dated 07.03.2017. Hence, the present revision petition. 3. Learned counsel for the plaintiff-petitioner would contend that as per Order IX Rule 2 CPC, a suit can be dismissed if summons are not served in consequence of plaintiff’s failure to pay costs, however, for not supplying the fresh correct address the suit cannot be dismissed. In support of his argument he has relied upon a judgment of this Court in the case of Punjab Tractors Ltd. vs. M/s Premier Cotton Industries, 1991(1) LJR 227. 4. The defendant-respondent No.1 in the present revision was duly served through affixation, however, none had put in appearance on behalf of the defendant-respondent No.1. Vide order dated 09.12.2019 a report was called from Civil Judge (Sr. Division), Amritsar regarding service of defendant-respondent No.1 - Ranjit Singh - to ascertain whether or not the said defendant-respondent No.1 was residing at the given address. Pursuant to the said order, it was reported by the Civil Judge (Sr. Vide order dated 09.12.2019 a report was called from Civil Judge (Sr. Division), Amritsar regarding service of defendant-respondent No.1 - Ranjit Singh - to ascertain whether or not the said defendant-respondent No.1 was residing at the given address. Pursuant to the said order, it was reported by the Civil Judge (Sr. Division), Amritsar vide report dated 24.01.2020 that the defendant-respondent No.1 - Ranjit Singh - was actually residing at the given address but was evading service. 5. Today, none has put in appearance on behalf of the defendant-respondent No.1 and hence he is proceeded against ex parte. The remaining respondents are proforma respondents. 6. Heard. 7. In the present case, prior to passing of the order dated 25.05.2016, defendant-respondent No.1 was served on 4 different occasions by affixation. Thereafter, on the 5th occasion, it was reported by the Process Server that the address was not traceable. Learned counsel for the plaintiff-petitioner has argued that the suit itself could not have been dismissed qua defendant-respondent No.1 and at best costs could have been imposed and an opportunity could have been granted to serve the defendant-respondent No.1 by way of substituted service. Order IX Rule 2 reads as under : “2. Dismissal of suit where summons not served in consequence of plaintiff’s failure to pay costs - Where on the day so fixed it is found that 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, 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: Provided that no such order shall be made, if notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer.” 8. The above reproduced provision of law clearly reveals that dismissal of a suit can be only when the summons are not served in consequence of the plaintiff’s failure to pay costs and there is no provision for dismissal of the suit for non supply of the correct address. The above reproduced provision of law clearly reveals that dismissal of a suit can be only when the summons are not served in consequence of the plaintiff’s failure to pay costs and there is no provision for dismissal of the suit for non supply of the correct address. The Trial Court ought to have afforded an opportunity to the plaintiff-petitioner to move an appropriate application for substituted service after recording it’s satisfaction that the defendant was keeping out of way for the purposes of avoiding service. 9. In view of the provision of law and the discussion above, the present revision petition is allowed and the impugned orders dated 25.05.2016 07.03.2017 are set aside. The suit is ordered to be restored to its original number qua defendant-respondent No.1. 10. Disposed off in the above terms. Pending applications, if any, also stand disposed off.