The main legal point established in the judgment is the interpretation and applicability of the provisions of Order VII Rule 11 and Section 151 of the Code of Civil Procedure in dismissing a suit for non-prosecution, and the exercise of the inherent power of the court to prevent the abuse of the process of the court.

S.J. Mukhopadhaya, J.

This appeal has been preferred by the appellant, M/s.Apollo Tyres Ltd., who is the 1st defendant in the suit, against order dated 12th June, 2007, passed by learned Judge in Application No.2309/06 in C.S. No.1226/93. The appellant/1st defendant preferred an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure to dismiss the suit for non-prosecution, but learned Judge rejected such application.

2. The suit was preferred by the respondent, M/s.Transport Corporation of India, Madras, for a decree against the 1st defendant to pay the plaintiff a sum of Rs.44,38.576/= with interest at the rate of 12% p.a., registered as C.S. No.1226/93 in the Original Side of this Court. Judges summons were sent and number of times returned and having ultimately served on the 1st defendant in 2006 and on appearance, the 1st defendant filed the aforesaid application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure to dismiss the suit for non-prosecution.

3. Counsel appearing on behalf of the appellant submitted that the suit was filed on 23rd July, 1993, specifically showing the address of the 1st defendant as that of registered office, but the respondent/plaintiff failed to take summons to the registered office inspite of the fact that the process server returned the summons on number of occasions stating that the 1st defendant could not be found at the address given in the summons, as the 1st defendant has vacated. In fact, no step was taken for about 13 years. As there is inordinate, inexplicable and inexcusable delay of 13 years in prosecuting the suit diligently and grave injustice and prejudice have been caused to the 1st defendant, the suit should have been dismissed for non-prosecution. Learned counsel referred to the factual aspect to suggest the manner in which the plaintiff tried to drag the matter. It was submitted by learned counsel for the appellant that the plaintiff, while clearly mentioned that the registered office of the 1st defendant is at 6th Floor, Shanmugam road, Cochin, Kerala 682032, as also at No.45, Giri Road, .Madras-17, from the perusal of the Court record it will be evident that the summons were sent to its address at No.45, Giri Road, Madras-17 only. The first summons was returned unserved on 18th Nov., 1994, followed by another summons, which were also returned unserved on 23rd Jan., 1996, 16th July, 1996 and 11th Dec., 1996. It was contended that all the time though the summons were returned with note that the defendant had left the address, but, repeatedly, summons were sent to the said address. After December, 1996, after about ten years, no step was taken till 13th Feb., 2006, when counsel for the plaintiff sought permission for private notice for service on the 1st defendant, which was ultimately served.

4. The grievance as made on behalf of the appellant is that because of the callous attitude on the part of the plaintiff, who tried to delay and drag the matter, now the 1st defendant will not be in a position to trace the documentary evidence and may be in a disadvantageous position to produce its witnesses, many of the employees as may have left the company in the meantime, who had knowledge of occurrence of fire as took place in 1993. It was further submitted that the 1st defendant being a company could get the details of the facts and information with regard to incident alleged to have taken place in 1993 only through its employees posted at Madras, many of whom may have left by this time. If the summons would have been served as back as in 1993-94, according to counsel, the appellant could have atleast kept track of the employees, who were posted on the relevant date at Chennai.

5. Learned counsel appearing on behalf of the respondent/plaintiff submitted that no case is made out to dismiss the suit under Order VII Rule 11 or Section 151 of the Code of Civil Procedure. In fact, none of the clause of Order VII r