Case Note & Summary
The petitioner, Sanjay Madanchand Kashyap, who was defendant no.1 in Special Civil Suit No.769 of 2012, filed a writ petition challenging the order dated 4.1.2014 passed by the Civil Judge (Sr.Dn.), Nagpur. The trial court had rejected his application (Exh.19) for dismissal of the suit against defendant nos. 2 to 9, 11 and 14 under Order IX Rule 5 of the Code of Civil Procedure, 1908 (CPC), and allowed the plaintiff's applications (Exh.20 and 21) for permission to serve those defendants and directed issuance of summons upon payment of process fees. The suit was filed by the respondent, Moolchand Saheblal Kashyap, for partition, separate possession and damages, claiming 1/7th share in joint family property. The plaintiff alleged that Saheblal (father) was karta of the joint Hindu family and after his demise, the plaintiff became karta. The suit was filed against fifteen defendants. Defendant nos. 1 to 4, 10 and 15 were served in December 2012, and defendant nos. 12 and 13 were served on 6.2.2013. On 29.6.2013, defendant no.1 moved application Exh.19 for dismissal of the suit against the unserved defendants, arguing that under Order IX Rule 5 CPC, since the plaintiff did not apply for fresh summons within two months of the return of summons, the suit must be dismissed. The plaintiff filed applications Exh.20 and 21 seeking permission to serve the remaining defendants. The trial court rejected Exh.19 and allowed Exh.20 and 21. The petitioner challenged this order. The High Court held that Order IX Rule 5 CPC applies only when summons are returned unserved, not when summons were never issued. In this case, summons were never issued to defendant nos. 5 to 9, 11 and 14, so the provision did not apply. The court further held that even if the provision applied, it is directory and not mandatory, and the court has discretion to extend time for service. The trial court's order was found to be proper and not suffering from any illegality. The writ petition was dismissed.
Headnote
A) Civil Procedure - Dismissal of Suit - Order IX Rule 5 CPC - Applicability - Order IX Rule 5 CPC applies only when summons are returned unserved, not when summons were never issued to the defendants - The trial court correctly rejected the application for dismissal as the summons were not returned unserved but were never issued to defendant nos. 5 to 9, 11 and 14 - Held that the provision is directory and the court has discretion to extend time for service (Paras 5-6). B) Civil Procedure - Service of Summons - Order IX Rule 5 CPC - Directory Nature - The provision is directory and not mandatory, and the court has discretion to extend time for service of summons even after the expiry of two months - The trial court's order allowing applications for permission to serve defendants and issuing summons was proper - Held that the court can permit service at any time if sufficient cause is shown (Paras 5-6).
Issue of Consideration
Whether the trial court was justified in rejecting the application for dismissal of suit under Order IX Rule 5 CPC when summons were not issued to some defendants and whether the court could permit service of summons after the prescribed period.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order dated 4.1.2014. The court held that Order IX Rule 5 CPC does not apply when summons were never issued, and even if it applied, it is directory and the court has discretion to extend time.
Law Points
- Order IX Rule 5 CPC applies only when summons are returned unserved
- not when summons were never issued
- Order IX Rule 5 CPC is directory not mandatory
- Court has discretion to extend time for service
