JUDGMENT - V.K. BARDE, J.:---The petitioner had filed Regular Civil Suit No. 299/1985 in the Court of Civil Judge (Junior Division), Ambad, against the present three respondents. In the said suit, the plaintiff failed to take proper steps for service of summons on defendant No. 2 i.e. present respondent No. 2, and therefore, the learned Civil Judge dismissed the suit as against defendant No. 2, as per the provisions of Order IX, Rule 5 of the Code of Civil Procedure (hereinafter referred to as "the Code" for the purpose of brevity).

2.The plaintiff thereafter filed an application requesting that the order be recalled and the suit be restored as against defendant No. 2 also. However, the learned Civil Judge rejected that application by order dated 25-4-1990. Here, it should be noted that the suit as against defendant No. 2 was dismissed under Order IX, Rule 5 of the Code and not as against defendant Nos. 1 and 3. However, the plaintiff had filed second application dated 4-4-1990 for restoration of the suit as against defendant No. 3 also. But the learned Counsel for the petitioner states that it was application filed through mistake and no relief is required with respect to defendant No. 3.

3.The learned Counsel for the petitioner has argued that, no doubt, the plaintiff had failed to take steps when the summons issued to defendant No. 2 returned unserved. However, it was not a deliberate mistake. The Advocate for the plaintiff, therefore, had filed application on 22-2-1990 for recalling the order and for restoration of the suit as against defendant No. 2 also. It is also argued that the learned Civil Judge could have pressed the order by exercising powers under section 151 of the Code. But the learned Civil Judge has failed to exercise the inherent jurisdiction and merely on technicalities, the matter is decided by the learned Civil Judge.

4.The learned Counsel for the respondents has argued that when the plaintiff had failed to take steps within prescribed time, then the Court had no option but to dismiss the suit as against the defendant with respect to whom the plaintiff had failed to take steps. There was no need to file any application for restoration. As per provisions of sub-rule (2) of Rule 5 of Order IX of the Code, the plaintiff could have filed fresh suit, subject to the law of limitation. In view of this specific provision, under sub-rule (2), the Civil Court has no jurisdiction to exercise any inherent powers under section 151 of the Code. It is, therefore, prayed that this revision petition be dismissed.

5.It is necessary to bring on record certain facts which are not disputed. This summons issued to defendant No. 2 was returned unserved on 7-10-1989. The matter was posted on 21-11-1989 for plaintiff to take steps. The plaintiff failed to take steps and, therefore, the matter was posted on 3-1-1990 for taking steps. Again the plaintiff had failed to take steps and, therefore, matter was fixed for passing order on 22-2-1990 and, on that day, the suit as against defendant No. 2 was dismissed as per the provisions of Order IX, Rule 5 of the Code. The application filed on that day by the plaintiff was also rejected.

6.The provisions of Order IX, Rule 5(1) of the Code, as it was applicable in the State of Maharashtra, at that time, were as follows:---

"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 two months from the next hearing of the suit to apply for 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 that-

(a) he has failed, after using his best endeavour to discover the residence of the defendant who has not seen 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 f

Click Here to Read the rest of this document