The duty of the court to prevent vexatious suits from continuing, and the discretion to refuse restoration of an appeal if the suit is deemed vexatious.

Syed Md.Mahfooz Alam, J.

1. This Miscellaneous Appeal has been preferred against the order dated 16.10.1993 passed by 1st Additional District Judge, Nalanda in Misc. Case No. 8 of 1992 whereby the learned Additional District Judge has been pleased to refuse to restore Money Appeal No. 2 of 1987 which was dismissed in default by order dated 6.8.1992.

2. It has been submitted by the learned Advocate of the appellant that Money Appeal No. 2 of 1987 was dismissed because of the fact that the appellant, who was plaintiff in Money Suit No. 7 of 1975/1 of 1987, failed to serve notice upon respondent no. 1 of Money Appeal No. 2 of 1987 who was a bank official and during the relevant time was transferred to some other place and his address was not known to the appellant. It was submitted by the learned Advocate of the appellant that on 6.8.1992 the appellant had made proper pairvi in Money Appeal No. 2 of 1987 and had filed a petition praying therein to direct respondent nos. 2 and 3, who had already made appearance in the appeal to give address of respondent no.1. He submitted that a copy of the said petition was also served upon the lawyer of the respondents no. 2 and 3 but in spite of that, the address of respondent no.1 could not be supplied to the appellant as a result of which the appellant was not in a position to serve notice upon respondent no.1. He submitted that the above facts establish that the refusal of the appellate court to re-admit the appeal was not justified and so, he prayed to allow this appeal.

3. Learned Advocate appearing on behalf of the respondents disputed the correctness of the submissions made by the learned Advocate of the appellant. He submitted that the petition dated 6.8.1992 filed on behalf of the appellant in Money Appeal No. 2/1987 is Ext.1 which will show that the appellant had never made any request from the court to direct the other respondents to supply the address of respondent no.1 to the appellant in order to serve the notice upon him.

4. I have gone through Exhibit 1 which is the petition dated 6.8.1992 filed on behalf of the appellant. There is no mention in the application that the appellant had made any request to the court to direct the other respondents who had made appearance in the appeal to supply the address of respondent no.1. Thus, the contention of the learned Advocate of the appellant that as other respondents who had made appearance in the appeal, failed to supply the address of respondent no. 1, as such he failed to serve notice upon respondent no.1, does not appear to be correct. The impugned order dated 16.10.1993 of the 1st Additional District Judge, Nalanda which is under challenge shows that the appellant failed to comply the courts order for service of notice upon respondent no.1 from 13.12.1990 to 6.8.1992 which establishes beyond doubt that the appellant was not interested in prosecuting the appeal rather he was interested to keep the appeal pending in order to harass the respondents.

5. It is true that for allowing or dismissing the prayer of restoration of appeal which was dismissed in default, there is no need to go through the merit of the case but it is the duty of the court to see that no vexatious suit be allowed to continue even for a single day. I am of the opinion that the suit filed by the appellant comes within the purview of vexatious suit as admittedly, the bullocks of the plaintiffappellant were attached in a certificate proceeding bearing Certificate Case No. 261 of 1974-75 by the order of the Certificate Officer and the said attachment was made for realisation of the loan amount which the appellant had obtained from the Land Mortgage Bank but had failed to repay the same. I am, therefore, of the view that the very maintainability of the suit is doubtful and such suit which comes in the category of vexatious suit, should not be allowed to continue even for a day. Under the circumstances, I am not inclined to allow this appeal and to restore Mone