Sudha Chandrasekharan K Vs Sasikala: If The Dismissal Of Suit Is To Be Set Aside, The Plaintiff Should Have The Opportunity To Take Out Fresh Summons To Other Defendants, Says Kerala HC

DATE OF JUDGEMENT:
20/08/2008

CORAM:
HON'BLE JUSTICE K.T. SANKARAN

PARTIES:
Petitioner: SudhaChandrasekharan
Respondent: Sasikala and Others

SUBJECT

This judgement answers question of law relating to Rule 5 Order IX of Civil Procedure Code and Section 151 of the Civil Procedure Code. If the dismissal of suit is to be set aside, the plaintiff should have the opportunity to take out fresh summons to other defendants.

OVERVIEW

• The Petitioner in this case was the first defendant, in a case at Court of Subordinate Judge of Kochi, who was served with a summons.
• The 3 respondents filed the suit for declaration of title over the property. However, the second and third defendant were not served with the summons. The Court gave time to the plaintiffs to take the necessary steps. However, they did not comply with the conditions of the order. The trial court dismissed the case on the ground that no steps were taken.
• On September 30, 2008, the plaintiffs filed an application under Rule 9 of Order IX, and Section 151 of the Code of Civil procedure to restore the suit that was dismissed for default.
• The first defendant argued that since the suit was dismissed under Rule 5: Order IX of the Code of Civil Procedure, the only remedy available to plaintiffs was to file a fresh suit.
• The court allowed an interlocutory application in interest of justice. This order was challenged and thus, this writ petition was filed.

RELEVANT PROVISIONS

• Rule 5 Order IX, CPC- It talks about dismissal of suit where plaintiff, after summons returned unserved, fails for seven days to apply for fresh summons. It means

1. he has failed to discover the residence of the defendant who has not been served, or
2. such defendant is avoiding service of process, or
3. there is any other sufficient cause of extending the time, in which case the court may extend the time for making such application for such period as it thinks fit.

In such case, the plaintiff may (subject to the law of limitation) bring a fresh suit.

• Section 151 of CPC- It provides for exercise of inherent powers to prevent the abuse of the process of court. The abuse of the power may be at the instance of a party or at the instance of the court itself.

ISSUES

• Whether the case dismissed under Rule 5 of Order IX of CPC is revived to file?
• Can the court dismiss the suit under Rule 5 Order IX against the defendant who was not served with a summons?
• Can Section 151 of the Code of Code of Civil Procedure be used to restore a suit dismissed under Rule 5 of Order 9 of the Code of Civil Procedure?

ANALYSIS

• The learned counsel of the petitioner stated that after a suit has been dismissed under Rule 5 Order IX CPC, the plaintiff can only file a fresh suit and cannot apply to restore it.It is only possible to restore a suit in a case where the plaintiff's suit was dismissed under Rules 2 and 3 or Rule 4 of Order IX of CPC. In such cases, Section 151 of Code of Civil Procedure cannot be utilized.
• The Respondent's side submitted that the court should not have dismissed the suit against the first defendant who was served with the summons. Instead, at best it was allowed for the suit to be dismissed as against the other defendants. The order passed by the court was recalled and may not be interfered with under the provision of Article 227 of the Constitution of India.
• The counsel stated that under Rule 5 of Order IX CPC, if a fresh suit is filed, sub rule 2 enables application for restoration. Even assuming that there no provision for restoration under Rule 5, the Court has the inherent power to exercise its powers under Section 151 of the Code.
• A contention was made that the period of seven days mentioned in Rule 5 of Order IX CPC is not mandatory but only directory.
• The plaintiffs filed an application for the restoration of their suit within 30 days after the dismissal of the case. But the question is about jurisdiction to allow such application. In the event of dismissal under Rule 2 or Rule 3, the plaintiffs have two remedies: they may file a fresh suit and apply for setting aside the dismissal. Such provision is not provided under Rule 5.
• Reliance was placed on Advocate Bar Association's case where it was held that in Rule 5, the period of seven days after the date of service of a summons is not mandatory. However, if the plaintiffs can prove that they were not served with the summons, the Court may dismiss the suit without prejudice.
• The Court observed that the case involves the dismissal of a lawsuit under Rule 5 of Order IX, even though the plaintiff was served with a summons. This action was illegal and could be corrected by the Court. This patent mistake could be corrected by exercise of the Article 227 of the Constitution.
• Further, the court said that the said illegality could be corrected suo moto by the Court, but there is no ground to exercise the jurisdiction, with this court under Article 227 of the Constitution of India, to interfere with the order passed by the previous court.

CONCLUSION

If the dismissal of suit is to be set aside, the plaintiff should have the opportunity to take out fresh summons to other defendants.The court noted that the interests of justice demanded that the suit be revived. The ground that the order impugned was not absolute and that the dismissal of the suit against first defendant was illegal and without jurisdiction. The court did not find any ground to exercise any jurisdiction under Article 227 of the Constitution to interfere with the court's order.

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