Case Note & Summary
The petitioner/plaintiff filed R.A.D. Suit No.600 of 2005 before the Small Causes Court, Mumbai, seeking a declaration of tenancy/deemed tenancy in respect of a flat. The original defendant, Savitri Dubey, died on 29 June 2016. Her advocate filed a pursis on 8 July 2016 informing the court of her death and stating that her eldest son, Nirajkumar Chandulal Dubey, would defend the suit with the consent of the other legal heirs. However, the Small Causes Court, by order dated 15 November 2016, directed that all legal heirs be brought on record. Consequently, the plaint was amended, and Nirajkumar Dubey (Defendant No.1(a)), Nilima Mishra (Defendant No.1(b)), and Nilabhkumar Dubey (Defendant No.1(c)) were impleaded. On 1 August 2017, Defendant No.1(a) filed an application (Exhibit-49) seeking dismissal of the suit against Defendant No.1(b) and 1(c) for non-service of summons. The court rejected that application on 4 April 2018, noting that no summons had been issued to those defendants due to oversight, and directed issuance of summons on 14 April 2018. The summons were returned unserved: for Defendant No.1(b) with the remark 'he unclaimed the same', and for Defendant No.1(c) with the remark 'door locked'. Subsequently, Defendant No.1(a) and 1(b) filed another application (Exhibit-86) under Order V Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking dismissal of the suit against Defendant No.1(c) for non-service of summons. The Small Causes Court allowed that application on 9 December 2021, dismissing the suit against Defendant No.1(c) under Order IX Rule 5 CPC. The petitioner filed a review application (Exhibit-96), which was rejected on 15 March 2023. The petitioner then challenged both orders before the Bombay High Court. The High Court held that Order V Rule 11 CPC mandates service of summons on each defendant, and the plaintiff's failure to apply for fresh summons within the prescribed period under Order IX Rule 5 CPC justified dismissal. The court noted that the plaintiff admitted procedural lapses and did not show sufficient cause for the delay of over three years. The court also held that the trial court had properly exercised its jurisdiction, and no interference under Article 227 was warranted. The petition was dismissed.
Headnote
A) Civil Procedure - Service of Summons - Order V Rule 11 CPC - Mandatory Service on Each Defendant - The court held that Order V Rule 11 of the Code of Civil Procedure, 1908 mandates service of summons on each defendant individually. Mere filing of a pursis authorizing one defendant to represent others does not absolve the plaintiff of this requirement, especially when the court directed all legal heirs to be brought on record. (Paras 5-6, 12) B) Civil Procedure - Dismissal of Suit - Order IX Rule 5 CPC - Failure to Apply for Fresh Summons - The court held that where summons is not served on a defendant and the plaintiff fails to apply for fresh summons within the prescribed period, the suit is liable to be dismissed against that defendant. The provision is mandatory, and the plaintiff's admitted procedural lapses over three years justified dismissal. (Paras 7, 11-12) C) Civil Procedure - Inherent Powers - Section 151 CPC - Restoration of Suit Dismissed Under Order IX Rule 5 - The court held that Section 151 of the Code of Civil Procedure, 1908 can be invoked to restore a suit dismissed under Order IX Rule 5 only upon showing sufficient cause. In this case, no sufficient cause was shown for the delay, and the plaintiff did not even apply for fresh summons till date. (Paras 6, 9) D) Constitutional Law - Certiorari - Article 227 - Interference with Trial Court Orders - The court held that the High Court, in exercise of its certiorari jurisdiction under Article 227 of the Constitution, should not interfere with orders passed by the trial court when the trial court has exercised its jurisdiction properly and there is no error apparent on the face of the record. (Para 9)
Issue of Consideration
Whether the Small Causes Court erred in dismissing the suit against Defendant No.1(c) under Order IX Rule 5 of the Code of Civil Procedure, 1908 for non-service of summons, and whether the High Court should interfere under Article 227 of the Constitution.
Final Decision
The Bombay High Court dismissed the petition, upholding the orders of the Small Causes Court dated 9 December 2021 and 15 March 2023. The court held that the dismissal of the suit against Defendant No.1(c) under Order IX Rule 5 CPC was justified due to non-service of summons and failure to apply for fresh summons within the prescribed period. The court found no error in the trial court's exercise of jurisdiction and declined to interfere under Article 227.
Law Points
- Order V Rule 11 CPC mandates service of summons on each defendant
- Order IX Rule 5 CPC provides for dismissal of suit against unserved defendant if plaintiff fails to apply for fresh summons within prescribed period
- Section 151 CPC can be invoked for restoration of suit dismissed under Order IX Rule 5 only upon showing sufficient cause
- Certiorari jurisdiction not warranted when trial court exercises jurisdiction properly
