1. On 18/6/2010 this Court has issued notice for final disposal and accordingly Writ Petition under Articles 226 and 227 of the Constitution of India has been heard finally by issuing Rule and making it returnable forthwith. Challenge is to order passed on 19/11/2009 by the 6th Additional Sessions Judge, Nagpur in Misc. Civil Appeal Nos. 187/2009 and 279/2008. Principal Small Cause Court has vide orders on 14/8/2008 passed below Exh. 25 rejected Respondent's prayer to serve Petitioner no.1 sister on whom the service of suit summons was later on found to be not valid and Appeal No. 279/2008 was directed against it. Small Cause Court had by separate order passed below Ex. 1 on same date dismissed the Suit under Order IX Rule 5 C.P.C. against Petitioner no.1 i.e. Defendant no.1 and Appeal no. 187/2009 questioned it. By common order dated 19/11/2009 both these Appeals came to be allowed.
2. Petitioners before this Court are sister and brother against whom the Respondent landlord has filed an eviction suit vide Civil Suit No. 453/2006 on the file of Additional Judge, Small Cause Court, Nagpur for eviction, rent arrears, damages alleging them to be joint tenants. On 20/4/2008, Respondent filed his affidavit of examination in chief and according to whom then there was offer for compromise. Case was ultimately fixed for his cross on 7/8/2008. On that day, a joint application was filed for adjournment and as it was rejected, Respondent landlord entered the witness box. After recording of part of his evidence, it was found that summons was not properly served on sister Defendant no.1 and case was wrongly put at stage of recording of evidence of the parties. He then moved application at Ex. 25 to serve sister again. Said application was heard on 14/8/2008 when rejecting contention of landlord that Order IX Rule 5, was only directory and not available as suit had progressed to the stage of the evidence and hence Order IX Rule 6(2) was relevant, the Small Cause Court dismissed Ex. 25. This was assailed in Appeal No. 279/2008. Later on landlord got knowledge that his suit was also dismissed as against DefendantPetitioner no.1 sister by separate order passed below Ex. 1 on same day. This order below Ex. 1 was then challenged in Appeal 187/2009.
3. Appellate Court relied upon the judgment of Hon'ble Apex Court in AIR 2005 SC 3353 (Salem Advocates Bar Association vs. Union of India) and found that the view of learned Single Judge of this Court in Vishwanath Satwaji Gaikwad vs. Laxman Abaji Kavale and others reported at AIR 2000 Bom. 307 2000 (4) Mah.L.J. 498 was not relevant in facts before it. The provisions of Order IX Rule 6(1)(b) CPC are found to be attracted and hence, it found landlord entitled to an opportunity to serve sister Defendant No.1 again. It therefore has allowed both the Appeals.
4. Shri Rohit Deo, learned Counsel for Petitioners SisterBrother duo has urged that the language of Order IX Rule 5 is very specific and its subrule 2 contemplates filing of fresh suit only when steps to serve afresh are not taken within statutory time prescribed therein. Stipulation of limitation therein while taking recourse to such fresh proceedings clearly support the mandatory nature thereof. Respondent landlord therefore had no option but to file fresh suit against the sister. Law as laid down by this Court in Vishwanath Satwaji Gaikwad vs. Laxman Abaji Kavale and others (supra) squarely covers the issue and judgment of Hon'ble Apex Court in Salem Advocates Bar Association vs. Union of India (supra) is not on the facet looked into by this Court. Error on part of Small Cause Court in fixing the suit for evidence of parties does not and cannot change the course of law as an important right then accrued in favour of both Petitioners. The provisions of Order IX Rule 6(1)(b) CPC are not applicable here. As ingredients of the Order IX Rule 5(a)(b)(c) of CPC are not fulfilled, the application at Ex. 25 could not have been granted. He further points out that though the landlord states that immediately after rejection of Ex. 25, he filed Ex. 27 seeking stay of civil suit to approach superior court, it is not clear from records whether that application came to be filed before passing of orders below Ex. 1 in Suit on 14/8/2008.
5. According to Shri Dubey, learned counsel for respondent the factual matrix looked into by the Appellate Court is sufficient to justify its approach and on 7/8/2008 for the first time all parties as also Small Cause Court learnt about the nonservice on Defendant no. 1 sister. He relies upon the ordersheet produced on record to show the relevant developments in this regard. To challenge the adverse order below Ex. 25, that court gave time of 14 days to Respondent landlord to approach the Appeal Court and inspite of it, passed further order below Ex. 1 dismissing Suit against sister. He urges that in view of law as settled by Hon'ble Apex Court, the view of this Court is no longer valid and in any case, here, recourse to Order IX Rule 6(1)(b) is correct. He therefore prays for dismissal of Petition.
6. The provisions of Order IX, Rules 5 and 6 of the Code are as follows :
"Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of 7 days from the date of return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for issue of a fresh summons, the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that
(a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or
(b) such defendant is avoiding service of process, or. (c) there is any other sufficient cause of extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit. (2) In such case the plaintiff may (subject to law of limitation) bring a fresh suit.
6. Procedure when only plaintiff appears: (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then
(a) When summons duly served If it is not proved that the summons was duly served, the Court may make an order that the suit be heard ex parte;
(b) When summons not duly served If it is not proved that the summons was duly served, the Court shall direct a second summons be issued and served on the defendant;
(c) When summons served but not in due time. If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.
7. Fact of absence of valid notice or summons to Defendant no.1 sister came to knowledge of plaintiff landlord as also the Court on record on 7/8/2008. Order sheet dated 5/3/2007 shows that summons sent to sister was returned and case was adjourned to 5/4/2007 for written statement. On 5/4/2007, Small Cause Court order sheet records that parties were present by counsel and W.S. filed by defendants was read and recorded. Word used is plural i.e., to cover both the sister and brother. Case was then fixed on 27/6/2007 for filing of affidavit meaning thereby the affidavit of examination in chief of the plaintiff landlord. Next 11 order sheets then do not record any thing material for present purposes. Next order sheet after these 12 dates is of 7/8/2008. Thus after 5/3/2007 and till 7/8/2008 i.e. during period of 17 months no orders indicating that landlord failed to complete service on Defendant no.1 sister or that service upon her was incomplete and hence, landlord should have taken appropriate steps in that direction are passed by the Small Cause Court. Also, there is no order to proceed exparte against her. For the first time orders in this respect are passed by it on 7/8/2008. It is when cross examination of landlord was going on and thus stage under Order IX Rule 5 CPC was rightly or wrongly crossed. There is no finding that plaintiff landlord needs to be blamed for this state of affairs in any way.
8. Perusal of order dated 14/8/2008 passed below Ex. 25 by the Small Cause Court shows that it found that as per judgment of Hon'ble Apex Court the period of 7 days prescribed in Rule 5(1) was only directory and plaintiff failed to make out any case under its clauses (a) to (c). Summons sent to Defendant No.1 sister was received unserved on 6/1/2007 vide Ex. 6 and since then no steps were taken by the plaintiff to procure her presence. As it found that remedy of filing fresh suit is prescribed and some provisions of CPC are mandatory, it proceeded to dismiss that application. Summons at Ex. 6 mentioned by it is reflected in order sheet dated 8/1/2007. On that date matter was adjourned to 3/2/2007 to enable plaintiff to take steps to serve Defendant No.1 sister. On 3/2/2007, report of fresh service was awaited and on 26/2/2007 order sheet mentions that said summons was not back and hence, orders fresh summons to her. Thus after 8/1/2007, plaintiff landlord did pay process fee again and report on it was never received by Court. Order sheet dated 5/3/2007 records that Defendant No.1 by "his" Counsel present. Defendant no.1 is a lady and her brother Defendant no.2 is a practicing Advocate. It further states that at Ex. 12 was the "Summons returned to service Defendant no.1". Then on that day case was not adjourned for effecting service upon the Defendant no.1 but it was adjourned for written statement. Ordersheets thereafter are already appreciated above. In its order dated 14/8/2008, the Small Cause Court has overlooked steps taken atleast twice by plaintiff landlord after 8/1/2007 and instead of making reference to Ex. 12, has based its order on Ex. 6 which had become obsolete.
9. Ex. 25 preferred by the Counsel for plaintiff landlord mentions that no orders were passed earlier in respect of service or absence of Defendant no.1 sister and he was under the impression that Defendant no.1 was duly served and had chosen not to file Written Statement. The Counsel has also stated that he had not inspected the records about service and the order sheet. These reasons are overlooked by the Small Cause Court. If these reasons and stages at or for which Suit came to be fixed on relevant dates like 5/3/2007 or thereafter are looked into, it is apparent that there are no malafides on his part. The office of the Court itself has created some confusion in the matter by employing words like "Defendant no.1 by "his" Counsel present", that at Ex. 12 was the "Summons returned to service Defendant no.1" and by adjourning case for written statement implying thereby that service on Defendants (both) was complete. When all this confusion and resulting error became known on 7/8/2008 for the first time, it is not understood why time to effect service on Defendant no.1 could not be given on 7/8/2008. Order IX Rule 5(1) itself contemplates action by plaintiff within 7 days. This time of 7 days was never mad available to plaintiff here. The facts squarely warranted exercise of power under Order IX Rule 5(1)(c) CPC by Small Cause Court.
10. Not only this provisions of Order IX Rule 6 also envisage this situation. Its subrule (1)(b) contemplates proof of fact that summons was duly served and still defendant is absent. Its subrule (1)(c) again contemplates a case where summons was not served within sufficient time. Hence, when the suit is called out for hearing and Court finds that Defendants or any one or more of them are not present, this scrutiny becomes necessary. If at such scrutiny the Court finds that situation falling under subrule (1)(b) or (c) has arisen for some fault on part of plaintiff, he has to pay the costs for such postponement. Here before taking up the case for cross examination of plaintiff landlord, this scrutiny was not undertaken. Had this scrutiny been undertaken, it is apparent that the provisions leave no scope with Small Cause Court but to give an opportunity to landlord to complete service on Defendant no. 1 sister. Here at Order IX Rule 5 stage, there was no need felt even by Court and no scope for plaintiff to take any steps serve Defendant no. 1 sister and hence, stage of Order IX Rule 6 was reached. The situation emerging could be regulated by and was covered under that provision and it was therefore not necessary to go back to Order IX Rule 5(1) stage to find fault with the plaintiff landlord. He did not stand to gain anything by not effecting the service on Defendant no. 1 sister. Use of words "may" and "shall" by the legislature already highlighted above also show the mandatory nature of said provisions and need of granting an opportunity to plaintiff to serve Defendant no.1 sister.
11. In its impugned order dated 19/11/2009 the Appellate Court has noticed the provisions of Order IX Rule 6(1)(b) and law as expounded in Salem Advocates Bar Association vs. Union of India (supra) and allowed both the Appeals of plaintiff landlord. Petitioners have attempted to demonstrate that this judgment of Apex Court does not make any dent in law as found in Vishwanath Satwaji Gaikwad vs. Laxman Abaji Kavale and others (supra) by this Court. In facts of matter decided by this Court then, summons issued to defendant no.2 was returned back on 7/10/1989 and case was posted on 21/11/1989 to enable plaintiff to take steps. As he failed to take steps, matter was adjourning to 3/1/1990 to enable him to take steps. Order IX Rule 5(1) CPC then prescribed period of 2 months instead of present period of 7 days. The case was then fixed on 22/2/1990 for passing orders and on that suit was dismissed against defendant no. 2. This Court has also found that in application for restoration moved on 22/2/1990, plaintiff there did not give any specific reasons for not taking steps within stipulated period of two months. Plaintiff there was found negligent by this Court. The plaintiff landlord before me can not be termed as negligent at all. Moreover, his application at Ex,25 is not for restoration but for exercise of a right unknowingly taken away on 5/3/2007 and thus it is for correction of a mistake. Such error or mistake does not confer any right on anybody and must be corrected by Courts. Said application therefore could not have been construed as filed to achieve something otherwise prohibited by the law in present facts. View of this Court that an application for restoration is not tenable under Section 151 CPC therefore has no relevance here.
12. As I have found that basic opportunity to take steps either under Order IX Rule 5 (1) or then Rule 6(1)(b) CPC has been declined to plaintiff landlord for no fault on his part, I do not find that the argument of effect of judgment of Hon'ble Apex Court in Salem Advocates Bar Association vs. Union of India [supra] on view of this Court requires any consideration in present matter. Well settled proposition that rules of procedure are handmaid of justice and not its mistress needs to be applied in present facts. As more recently observed by Hon'ble Apex Court in AIR 2007 S.C. 2571(R. N. Jadi and Brothers .vrs. M/s. v. Subhashchandra), the language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. These observations apply with more vigor as error crept in inadvertently can not be allowed to perpetrate further. Whether provisions in Order IX Rule 6 CPC have got any bearing on interpretation or scheme of Order IX Rule 5 also appears to be a debatable issue which again does not squarely emerge here. When both i.e. sister and brother are joint tenants, whether a decree for eviction could have been passed only against brother (Defendant no.2) and law permits a separate suit for same decree against Defendant no.1 sister is a moot question which again need not be answered in this matter. If inconsistent decrees are to be avoided, whether such later suit should be consolidated with pending suit which is already dismissed against the defendant in later suit is again an important angle to examine the purport of Order IX Rule 5 (2) CPC. Whether it is only a positive or enabling provision which gives option of filing a fresh suit also and does not contain any negative stipulation or a bar to restoration of suit in as far as the defendant against whom it is dismissed, also needs to be ascertained in a proper matter. All these questions with its various facets are left untouched and open for adjudication in more appropriate facts.
13. As I find no jurisdictional error or perversity in the approach and appreciation of the Appellate Court, its order dated 19/11/2009 is upheld. Writ petition is accordingly dismissed. Rule discharged with no order as to costs.