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2010 Supreme(Bom) 1332
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI
Zaibunnisa d/o late Mohd. Din & Another
Versus
Rushi s/o Ramchandra Moon
WRIT PETITION No. 2745 OF 2010
Decided on : 17-09-2010
For the Petitioners:Rohit Deo, Advocate.
For the Respondent:D.K. Dubey, Advocate.
Headnote:Civil Procedure Code, 1908 - Order IX, Rules 5(1) and 6(1)(b)- Service of summons-Eviction suit-Proceeded for evidence without service of summons on one of tenants-Time of 7 days for taking steps for service of summons never made available to plaintiff-No scrutiny by Court-2nd summons not issued-Non-compliance of mandatory provisions of Rules 5 or 6-Impugned order of appellate Court setting aside dismissal of suit against defendant 1, tenant for non-service of summons warrants no interference-Upheld.-As Court has found that basic opportunity to take steps either under Order IX, Rule 5(1) or then Rule 6(1)(b), CPC has been declined to plaintiff landlord for no fault on his part, Court does not find that the argument of effect of judgment of Hon’ble Apex Court in Salem Advocates Bar Association v. Union of India, 2005 (5) All MR (SC) 876 on view of the Court requires any consideration in present matter. Well-settled proposition that rules of procedure are handmaid of justice and not its mistress needs to be applied in present facts. As more recently observed by Hon’ble Apex Court in R.N. Jadi and Brothers v. M/s. V. Subhashchandra, AIR 2007 SC 2571 : 2007 All SCR 1981, the language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. The observations apply with more vigor as error crept in inadvertently cannot be allowed to perpetrate further. Whether provisions in Order IX, Rule 6, CPC have got any bearing on interpretation or scheme of Order IX, Rule 5 also appears to be a debatable issue which again does not squarely emerge here. When both i.e. sister and brother are joint tenants, whether a decree for eviction could have been passed only against brother (defendant No. 2) and law permits a separate suit for same decree against defendant No. 1 sister is a moot question which again need be answered in this matter. If inconsistent decrees are to be avoided, whether such later suit should be consolidated with pending suit which is already dismissed against the defendant in later suit is again an important angle to examine the purport of Order IX, Rule 5(2), CPC. Whether it is only a positive or enabling provision which gives option of filing a fresh suit also and does not contain any negative stipulation or a bar to restoration of suit in as far as the defendant against whom it is dismissed, also needs to be ascertained in a proper matter. All these questions with its serious facets are left untouched and open for adjudication in more appropriate facts.
As Court finds no jurisdictional error or perversity in the approach and appreciation of the appellate Court, its order dated 19.11.2009 is upheld.
1. On 18/6/2010 this Court has issued notice for final disposal and accordingly Writ Petition under Articles 226 and 227 of the Constitution of India has been heard finally by issuing Rule and making it returnable forthwith. Challenge is to order passed on 19/11/2009 by the 6th Additional Sessions
Judge, Nagpur in Misc. Civil Appeal Nos. 187/2009 and 279/2008. Principal Small Cause Court has vide orders on 14/8/2008 passed below Exh. 25 rejected Respondent's prayer to serve Petitioner no.1 sister on whom the service of suit summons was later on found to be not valid and Appeal No. 279/2008 was directed against it. Small Cause Court had by separate order passed below Ex. 1 on same date dismissed the Suit under Order IX Rule 5 C.P.C. against Petitioner no.1 i.e. Defendant no.1 and Appeal no. 187/2009 questioned it. By common order dated 19/11/2009 both these Appeals came to be allowed.
2. Petitioners before this Court are sister and brother against whom the Respondent landlord has filed an eviction suit vide Civil Suit No. 453/2006 on the file of Additional Judge, Small Cause Court, Nagpur for eviction, rent arrears, damages alleging them to be joint tenants. On 20/4/2008, Respondent filed his affidavit of examination in chief and according to whom then there was offer for compromise. Case was ultimately fixed for his cross on 7/8/2008. On that day, a joint application was filed for adjournment and as it was rejected, Respondent landlord entered the witness box. After recording of part of his evidence, it was found that summons was not properly served on sister Defendant no.1 and case was wrongly put at stage of recording of evidence of the parties. He then moved application at Ex. 25 to serve sister again. Said application was heard on 14/8/2008 when rejecting contention of landlord that Order IX Rule 5, was only directory and not available as suit had progressed to the stage of the evidence and hence Order IX Rule 6(2) was relevant, the Small Cause Court dismissed Ex. 25. This was assailed in Appeal No. 279/2008. Later on landlord got knowledge that his suit was also dismissed as against Defendant-Petitioner no.1 sister by separate order passed below Ex. 1 on same day. This order below Ex. 1 was then challenged in Appeal 187/2009.
3. Appellate Court relied upon the judgment of Hon'ble Apex Court in AIR 2005 SC 3353 (Salem Advocates Bar Association vs. Union of India) and found that the view of learned Single Judge of this Court in Vishwanath Satwaji Gaikwad vs. Laxman Abaji Kavale and others reported at AIR 2000 Bom. 307 – 2000 (4) Mah.L.J. 498 was not relevant in facts before it. The provisions of Order IX Rule 6(1)(b) CPC are found to be attracted and hence, it found landlord entitled to an opportunity to serve sister Defendant No.1 again. It therefore has allowed both the Appeals.
4. Shri Rohit Deo, learned Counsel for Petitioners Sister-Brother duo has urged that the language of Order IX Rule 5 is very specific and its sub-rule 2 contemplates filing of fresh suit only when steps to serve afresh are not taken within statutory time prescribed therein. Stipulation of limitation therein while taking recourse to such fresh proceedings clearly support the mandatory nature thereof. Respondent landlord therefore had no option but to file fresh suit against the sister. Law as laid down by this Court in Vishwanath Satwaji Gaikwad vs. Laxman Abaji Kavale and others (supra) squarely covers the issue and judgment of Hon'ble Apex Court in Salem Advocates Bar Association vs. Union of India (supra) is not on the facet looked into by this Court. Error on part of Small Cause Court in fixing the suit for evidence of parties does not and cannot change the course of law as an important right then accrued in favour of both Petitioners. The provisions of Order IX Rule 6(1)(b) CPC are not applicable here. As ingredients of the Order IX Rule 5(a)(b)(c) of CPC are not fulfilled, the application at Ex. 25 could not have been granted. He fur
