Case Note & Summary
The Maharashtra State Electricity Distribution Company Limited filed a suit for recovery of Rs.3,52,705.29 towards electricity bills from December 2001 to March 2003. Summons were issued but returned for want of proper address. The plaintiff filed an application on 10.8.2009 seeking permission to serve the respondents by paper publication. However, without considering this application, the trial court dismissed the suit on 16.11.2009 for non-prosecution and failure to take steps for issuance of summons. The plaintiff filed an application (Exhibit 24) to set aside the dismissal, which was also dismissed on 16.11.2009. The High Court held that the trial court's order was unsustainable as it failed to consider the pending application for service by paper publication. The writ petition was allowed, the order dated 16.11.2009 was quashed, and the trial court was directed to decide Exhibit 24 along with the application for permission to serve by paper publication.
Headnote
A) Civil Procedure - Service of Summons - Dismissal of Suit - Restoration - The trial court dismissed the suit for non-prosecution and failure to take steps for issuance of summons, but an application for service by paper publication was pending. The High Court held that the order cannot be sustained as the application was not considered, and set aside the order, directing the trial court to decide both applications together. (Paras 1-3)
Issue of Consideration
Whether the trial court's order dismissing the suit for non-prosecution and failure to take steps for issuance of summons is sustainable when an application for service by paper publication was pending consideration.
Final Decision
Writ Petition allowed. Order dated 16.11.2009 passed in Special Civil Suit No.49 of 2008 is quashed and set aside. Application at Exhibit 24 shall be decided by the trial Court along with the Application for permission to serve the Respondents by paper publication. Rule made absolute. No order as to costs.
Law Points
- Civil Procedure
- Service of Summons
- Suit Dismissal
- Restoration
- Sufficient Cause
Case Details
2013 LawText (BOM) (07) 133
Writ Petition No. 991 of 2011
Ms. A.R.S. Baxi for Petitioner
The Maharashtra State Electricity Distribution Company Limited
Ajinkya Wire Product, Satara and Maharashtra Industrial Development Corpn, Satara
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Nature of Litigation
Writ Petition challenging trial court order dismissing suit for non-prosecution and failure to take steps for issuance of summons.
Remedy Sought
Petitioner sought setting aside of the trial court's order dated 16.11.2009 dismissing the suit and the application for restoration.
Filing Reason
The trial court dismissed the suit without considering the pending application for service by paper publication.
Previous Decisions
The trial court dismissed the suit on 2.2.2009 for non-prosecution and dismissed the application for restoration (Exhibit 24) on 16.11.2009.
Issues
Whether the trial court's order dismissing the suit for non-prosecution is sustainable when an application for service by paper publication was pending.
Submissions/Arguments
Petitioner argued that the trial court passed the order without considering the pending application for service by paper publication.
Ratio Decidendi
A court cannot dismiss a suit for non-prosecution or failure to take steps for issuance of summons without considering a pending application for alternative service, such as by paper publication. Such an order is unsustainable and liable to be set aside.
Judgment Excerpts
By an order dated 16.11.2009 the learned Judge of the trial Court has dismissed the Application Exhibit 24 for setting aside the order of dismissal of a suit passed on 2.2.2009.
An Application was filed subsequently on 10.8.2009 stating that the Petitioner be permitted to serve the Respondents by paper publication. However, without considering such an Application the order impugned has been passed on 16.11.2005. The order cannot therefore, be sustained.
Procedural History
The petitioner filed Special Civil Suit No.49 of 2008 for recovery of electricity dues. Summons were issued but returned for want of proper address. On 10.8.2009, petitioner filed application for service by paper publication. On 2.2.2009, the suit was dismissed for non-prosecution. Petitioner filed Exhibit 24 for restoration, which was dismissed on 16.11.2009. Petitioner then filed the present writ petition.
Acts & Sections
- Code of Civil Procedure, 1908: Order 9 Rule 9
