Case Note & Summary
The case involves a writ petition filed by Smt. Zaibunnisa and Mr. Riyazur Rahim, sister and brother, against an order passed by the 6th Additional Sessions Judge, Nagpur, in Misc. Civil Appeal Nos. 187/2009 and 279/2008. The respondent, Rushi Moon, is the landlord who filed an eviction suit (Civil Suit No. 453/2006) against the petitioners, alleging them to be joint tenants. The suit was filed in the Small Cause Court, Nagpur. On 20/4/2008, the landlord filed his affidavit of examination-in-chief, and the case was fixed for cross-examination on 7/8/2008. On that day, a joint application for adjournment was rejected, and the landlord entered the witness box. During recording of evidence, it was discovered that summons had not been properly served on the sister-defendant (petitioner no.1). The landlord then moved an application (Ex. 25) to serve her again. On 14/8/2008, the Small Cause Court rejected that application, holding that Order IX Rule 5 CPC was directory and not available as the suit had progressed to evidence stage, and that Order IX Rule 6(2) CPC was relevant. The Small Cause Court also dismissed the suit against the sister-defendant under Order IX Rule 5 CPC by a separate order passed below Ex. 1 on the same date. The landlord appealed against both orders. The appellate court allowed both appeals by a common order dated 19/11/2009, relying on the Supreme Court judgment in Salem Advocates Bar Association vs. Union of India (AIR 2005 SC 3353) and a Single Judge decision of the Bombay High Court in Vishwanath Satwaji Gaikwad vs. State of Maharashtra. The petitioners challenged this appellate order before the High Court under Articles 226 and 227 of the Constitution of India. The High Court held that Order IX Rule 5 CPC is directory and not mandatory, and dismissal of a suit under that provision is not automatic where the suit has progressed to the stage of recording of evidence. The court found that the appellate court erred in setting aside the dismissal without considering that the suit had already proceeded to evidence stage and the landlord had participated. The High Court allowed the writ petition, set aside the appellate court's order, and restored the orders of the Small Cause Court.
Headnote
A) Civil Procedure - Order IX Rule 5 CPC - Directory vs Mandatory - Order IX Rule 5 of the Code of Civil Procedure, 1908 - The court held that Order IX Rule 5 CPC is directory and not mandatory, and dismissal of a suit under that provision is not automatic where the suit has progressed to the stage of recording of evidence. The appellate court erred in setting aside the dismissal of the suit against the sister-defendant without considering that the suit had already proceeded to evidence stage and the landlord had participated. (Paras 1-10) B) Civil Procedure - Order IX Rule 6(2) CPC - Applicability - Order IX Rule 6(2) of the Code of Civil Procedure, 1908 - The court held that Order IX Rule 6(2) CPC applies when the defendant appears after service of summons, and the suit can proceed ex parte. In this case, since the sister-defendant had not been validly served, the suit could not have been placed at the stage of evidence. However, the dismissal under Order IX Rule 5 was not automatic. (Paras 2-8) C) Civil Procedure - Service of Summons - Validity - Order IX Rule 5 CPC - The court noted that the service of summons on the sister-defendant was found to be not valid, and the landlord sought to serve her again. The Small Cause Court rejected that application, but the appellate court allowed it. The High Court held that the appellate court's order was erroneous as it did not consider the directory nature of Order IX Rule 5. (Paras 2-10)
Issue of Consideration
Whether Order IX Rule 5 of the Code of Civil Procedure, 1908 is mandatory or directory, and whether the dismissal of a suit under that provision is automatic when the suit has progressed to the stage of recording of evidence.
Final Decision
The High Court allowed the writ petition, set aside the appellate court's order dated 19/11/2009, and restored the orders of the Small Cause Court dated 14/8/2008 rejecting application Ex. 25 and dismissing the suit against petitioner no.1 under Order IX Rule 5 CPC.
Law Points
- Order IX Rule 5 CPC is directory
- not mandatory
- Dismissal of suit under Order IX Rule 5 CPC is not automatic if suit has progressed to evidence stage
- Order IX Rule 6(2) CPC applies when defendant appears after service
- Service of summons must be valid before proceeding to evidence
