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2023 Supreme(P&H) 1491
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Alka Sarin, J.
Paramjit Kaur – Appellant
Versus
Ranjit Singh & Ors. – Respondents
CR No. 5181 of 2019
Decided On : 22-03-2023
For the Parties : Mr. A.P.S. Sandhu, Mr. Namish Sodhi, Mr. Prateek Sodhi
Headnote:(A) Code of Civil Procedure, 1908 - Order IX Rule 2 - Dismissal of suit for non-service of summons - Plaintiff's suit dismissed due to failure to provide correct address of defendant - Court found no provision allows dismissal for incorrect address without due process for service - Defendant was effectively evading service; plaintiff should have been allowed to pursue substituted service. (Paras 3, 8, 9)
(B) Plaintiff's Rights - The dismissal of the suit was contrary to judicial principles, as the trial court should have granted an opportunity for substituted service rather than dismissing for lack of address clarity. (Paras 7, 8)
Facts of the case:
The plaintiff challenged dismissal orders related to a suit for mandatory injunction regarding the possession of a street, citing failure to provide the correct address of one defendant and service issues.
Findings of Court:
The court ruled the trial court's dismissal was incorrect and should have permitted opportunities for proper service of notice.
Issues: The principal question involved whether a suit can be dismissed solely for non-provision of a defendant's address without allowing for substituted service.
Ratio Decidendi: The court clarified that the dismissal under the relevant rule requires service failure due to plaintiff's actions, and the trial court erred in dismissing the suit.
Result: Revision petition allowed; impugned orders set aside and suit restored.
| Table of Content |
|---|
| 1. dismissal of suit for lack of address. (Para 1 , 2) |
| 2. arguments on service and dismissal rules. (Para 3 , 4) |
| 3. court's observations on service adequacy. (Para 5 , 6 , 8) |
| 4. application of legal provisions on service. (Para 7) |
| 5. restoration of suit against defendant. (Para 9 , 10) |
Judgment
Mrs. Alka Sarin, J.
The present revision petition has been filed challenging the order dated 25.05.2016 dismissing the suit of the plaintiff-petitioner qua defendant No.5 (respondent No.1 herein) for want of providing fresh address and the order dated 07.03.2017 whereby application for restoration of the suit qua defendant-respondent No.1 was also dismissed.
2. The brief facts relevant to the present lis are that the plaintiff-petitioner filed a suit for mandatory injunction for directing defendant-respondent Nos.2 to 4 to restore the possession of 4 ft. wide street as described in the plaint, as also for mandatory injunction directing defendant-respondent No.5 to restore the possession of 4 ft. wide street as described in detail in the plaint and further for mandatory injunction directing defendant-respondent No.1 herein to restore the possession of 4 ft. wide street as described in the plaint. Vide order dated 25.05.2016, as no written statement was filed on behalf of defendant-respondent Nos.2 to 5, their defence was struck off. It is noticed in the order that correct address of defendant-respondent No.1 herein had not been filed and that the plaintiff-petitioner herein despite availing numerous opportunities had not furnished the correct address for service of defendant-respondent No.1 and hence the suit was dismissed against defendant-respondent No.1 for non-prosecution. Subsequently, an application for restoration of the suit qua defendant-respondent No.1 was filed which application was also dismissed vide order dated 07.03.2017. Hence, the present revision petition.
3. Learned counsel for the plaintiff-petitioner would contend that as per Order IX Rule 2 CPC, a suit can be dismissed if summons are not served in consequence of plaintiff’s failure to pay costs, however, for not supplying the fresh correct address the suit cannot be dismissed. In support of his argument he has relied upon a judgment of this Court in the case of Punjab Tractors Ltd. vs. M/s Premier Cotton Industries , 1991(1) LJR 227.
4. The defendant-respondent No.1 in the present revision was duly served through affixation, however, none had put in appearance on behalf of the defendant-respondent No.1. Vide order dated 09.12.2019 a report was called from Civil Judge (Sr. Division), Amritsar regarding service of defendant-respondent No.1 - Ranjit Singh - to ascertain whether or not the said defendant-respondent No.1 was residing at the given address. Pursuant to the said order, it was reported by the Civil Judge (Sr. Division), Amritsar vide report dated 24.01.2020 that the defendant-respondent No.1 - Ranjit Singh - was actually residing at the given address but was evading service.
5. Today, none has put in appearance on behalf of the defendant-respondent No.1 and hence he is proceeded against ex parte. The remaining respondents are proforma respondents.
6. Heard.
7. In the present case, prior to passing of the order dated 25.05.2016, defendant-respondent No.1 was served on 4 different occasions by affixation. Thereafter, on the 5th occasion, it was reported by the Process Server that the address was not traceable. Learned counsel for the plaintiff-petitioner has argued that the suit itself could not have been dismissed qua defendant-respondent No.1 and at best costs could have been imposed and an opportunity could have been granted to serve the defendant-respondent No.1 by way of substituted service.
Order IX Rule 2 reads as under :
“2. Dismissal of suit where summons not served in consequence of plaintiff’s failure to pay costs - Where on the day so fixed it is found that summons has not been served upon the defendant in consequence of the failure of the plai
