JUDGMENT :

Pradeep Nandrajog, J.

1. We answer the reference as framed vide order dated 10th February, 2010 in Writ Petition No. 896 of 2007.

2. The Writ Petition was filed because Suit filed by the Petitioners was dismissed by the learned Trial Judge on 3rd May, 2002 against Defendant Nos. 5 and 6 on account of the failure of the Petitioners to apply for fresh summons to be served upon the said Defendants. The Suit against said Defendants was dismissed in exercise of power under Sub-Rule (1) of Rule 5 of Order IX of the Code of Civil Procedure, 1908. Application filed by the Petitioners before the learned Trial Judge for setting aside the order of dismissal dated 3rd May, 2002 was rejected vide order dated 16th August, 2003; with the reasoning that in view of Sub-Rule (2) of Rule 5 of Order IX of the Code the only remedy of the Petitioners was to bring a fresh Suit, a reasoning which finds sustenance from a decision of a learned Single Judge of this Court reported as 2000 (4) Mh.L.J. 498 Vishwanath Satwaji Gaikwad vs. Laxman Abaji Kavale & Ors.

3. We have heard learned Counsel for the parties.

4. The arguments in support of the law declared in Vishwanath's case (Supra) center upon the legislative intent to be gathered from the various Rules comprising Order IX of the Code. Order IX concerns Appearances of Parties and Consequences of Non-appearance. As per Rule 1, on the day fixed in the summons for the defendant to appear and answer, the parties have to be in attendance at the Court-house in person or by their respective pleaders, and the Suit has to be heard unless the hearing is adjourned to a future day fixed by the Court. As per Sub-Rule (2), where on the day so fixed it is found that the 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. As per Rule 3, when neither parties appear when the Suit is called for hearing, the Court may make an order that the Suit be dismissed. The right of the plaintiff pertaining to an order dismissing a Suit either under Rule 2 or Rule 3 of Order IX is provided for in Rule 4. The said Rule gives two rights in favour of the Plaintiff. The first right is that subject to the law of limitation the Plaintiff can institute a fresh Suit. The second right is to apply to the Court seeking setting aside of the order dismissing the Suit but upon the discharge of burden by the Plaintiff of satisfying the Court that there was sufficient cause for such failure or non appearance as the case may be. Upon being satisfied, the Court would be empowered to set aside the order dismissing the Suit. Rule 5 requires that wherever a summons has been issued to the defendant or to several defendants and the summons are/is returned unserved and the Plaintiff fails for a period of seven days from the date of the return made to the Court to apply for issuance of a fresh summons, the Court can dismiss the suit against such Defendant unless the Plaintiff has within the said period (seven days) satisfied the Court that he has failed inspite of using his best endeavour to discover the residence of the Defendants or such Defendant is avoiding service of process or there is any other sufficient cause to extend time, in which case, the Court would be empowered to extend the time. Sub-Rule (2) of Rule 5 of Order IX provides for the consequences. It empowers the Plaintiff to bring a fresh Suit subject to the law of limitation.

5. The contention in support of the view taken by the learned Trial Judge which gets reinforced by the decision of a learned Single Judge of this Court in Vishwanath Satwaji Gaikwad (Supra) is that the legislature was conscious of various circumstances or events resulting in dismissal of a Suit. Whereas a dismissal of a Suit under Rule 2 and Rule 3 of Order IX is