The court emphasized that procedural rules should not lead to dismissal of a suit when the defendant has knowledge of the proceedings, allowing for restoration of the suit.

JUDGMENT :

SANDEEP V. MARNE, J.

1. Petitioner has filed this petition challenging the order dated 9 December 2021 on application filed by Defendant No. 1(a) and 1(b) at Exhibit 86 seeking dismissal of the Suit for non-compliance of Rule 11 of Order V of the Code of Civil Procedure, 1908 (the Code). The Trial Court has allowed the application on 9 December 2021 and the Suit against Defendant No. 1(c) has been dismissed under provisions of Order IX Rule 5 of the Code. Petitioner applied for review of the order by filing application at Exhibit-96, which has been rejected by order dated 15 March 2023, which is also subject matter of challenge in the present petition.

2. Petitioner/Plaintiff has filed R.A.D. Suit No. 600 of 2005 against original Defendant - Savitri Dubey seeking a declaration of tenancy /deemed tenancy in respect of suit premises bearing flat No. 5 in the building ‘Shivsagar’ Block No. 19, Worli Sea Face, Worli, Mumbai-400 018. During the pendency of the Suit, Savitri Dubey passed away on 29 June 2016. Her Advocate filed pursis dated 8 July 2016 informing about death of Defendant- Savitri Dubey leaving behind two sons and a daughter. It was contended in the pursis that after the death of the Defendant, Suit would be defended by her eldest son -Nirajkumar Chandulal Dubey and that the other son and daughter had consented for defending of Suit by him. Consent letter dated 4 July 2016 of Nilima Mishra and Nilabhkumar Dubey was produced alongwith the pursis. The Small Causes Court passed order dated 15 November 2016 directing that all the legal heirs of the deceased Defendant be brought on record. Accordingly, plaint was amended and Nirajkumar Dubey, Nilima Mishra (Dubey) and Nilabhkumar Dubey came to be impleaded as Defendant No. 1(a) to Defendant 1(c). It appears that an application was filed by Defendant No. 1(a) seeking dismissal of suit against Defendant No. 1(b) and 1(c) (erroneously described as Defendant Nos. 2 and 3) under the provisions of Order IX Rule 5 of the Code. It was contended in the application that the summons in the Suit were not served on Defendant Nos. 1(b) and 1(c) and that therefore the Suit was liable to be dismissed against the said Defendants. By order dated 4 April 2018, the Small Causes Court rejected the application at Exhibit 49 holding that no order was issued for issuance of summons to Defendant No. 1(b) and 1(c) and that therefore there was no question of Plaintiff taking steps after return of summons without service. It appears that a separate order was passed on 4 April 2018 observing that due to oversight, suit summons were not issued to Defendant No. 1(b) and 1(c). The Court therefore directed issuance of summons on Defendant No. 1(b) and 1(c) on 14 April 2018. It appears that both the summons were returned unserved. In respect of Defendant No. 1(b) the remark was “he unclaimed the same” whereas summons in respect of Defendant No. 1(c) was returned with the remark ‘door locked’. However it appears that an appearance was caused by Defendant No. 1(b) in the suit.

3. Defendant No. 1(a) and 1(b) filed application for rejection of plaint under Order VII Rule 11 sub clause (a) and (d) of the Code on 3 December 2018, which came to be rejected by the Small Causes Court by order dated 28 August 2019. Defendant No. 1(a) and 1(b) filed Revision Application No. 24 of 2021 challenging the order of dismissal of application for rejection of plaint, which came to be rejected by the Appellate Bench by order dated 11 February 2021.

4. Defendant Nos. 1(a) and 1(b) thereafter filed application at Exh.86 seeking dismissal of the Suit under provisions of Order V Rule 11 of the Code on the ground that Defendant No. 1(c) was not served with suit summons. By order dated 9 December 2021, the Small Causes Court allowed the application at Exh.86 and dismissed the Suit against Defendant No. 1(c) under Order IX Rule 5 of the Code, which is the subject matter of challenge in the present Petition. Petitioner filed Rev