Case Note & Summary
The appellants, M/s. Jain Developers and others, filed Suit No. 2808 of 2008 in the Bombay High Court seeking a declaration that there was a valid and subsisting agreement of sale in respect of a piece of land at Mogra, Andheri, based on a Memorandum of Understanding (MoU) dated 16/11/2007. They claimed to have paid Rs. 17 lakhs as part payment to respondent no. 5. The suit was filed in 2008. Over the years, the plaintiffs attempted to serve the defendants but faced difficulties. They filed a Chamber Summons (No. 139 of 2017) seeking substituted service by way of publication in a newspaper. However, before that Chamber Summons could be heard, the defendants filed Notice of Motion No. 2513 of 2016 seeking dismissal of the suit for want of prosecution under Order IX Rule 5 of the Code of Civil Procedure, 1908 (CPC). The learned Single Judge allowed the Notice of Motion and dismissed the suit on the sole ground that the plaintiffs had failed to serve the defendants as directed by the court. Aggrieved, the plaintiffs filed Commercial Appeal No. 168 of 2017. The Division Bench, comprising S.C. Dharmadhikari and Smt. Bharati H. Dangre, JJ., heard the appeal. The court noted that the plaintiffs had taken steps to serve the defendants, including filing a Chamber Summons for substituted service, which was pending. The court held that dismissal under Order IX Rule 5 CPC requires a finding of willful default or negligence, which was absent in the Single Judge's order. The court also observed that the suit was a commercial suit and the appeal was maintainable under Section 13 of the Commercial Courts Act, 2015. The Division Bench set aside the order of the Single Judge and restored the suit to its original number, directing the plaintiffs to take steps for service within four weeks. The Notice of Motion (Appeals) No. 1940 of 2017 was disposed of accordingly.
Headnote
A) Civil Procedure - Dismissal of Suit for Want of Prosecution - Order IX Rule 5 of Code of Civil Procedure, 1908 - The court held that dismissal under Order IX Rule 5 CPC requires a finding of willful default or negligence on the part of the plaintiff in serving the summons. Mere failure to serve, without such finding, does not justify dismissal. The plaintiffs had made efforts to serve the defendants, including filing a Chamber Summons for substituted service, which was pending. The Single Judge's order dismissing the suit was set aside. (Paras 1-33) B) Commercial Appeal - Maintainability - Section 13 of Commercial Courts Act, 2015 - The appeal was filed under Section 13 of the Commercial Courts Act, 2015, against an order dismissing a commercial suit. The Division Bench held that the appeal was maintainable and the order was appealable as it disposed of the suit. (Paras 1-33)
Issue of Consideration
Whether the learned Single Judge was justified in dismissing the suit for want of prosecution solely on the ground that the plaintiffs failed to serve the defendants as directed, without considering the plaintiffs' explanation and efforts to serve.
Final Decision
The Division Bench allowed the appeal, set aside the order of the learned Single Judge dated 30/01/2018 dismissing Suit No. 2808 of 2008, and restored the suit to its original number. The plaintiffs were directed to take steps for service of summons on the defendants within four weeks from the date of the order. The Notice of Motion (Appeals) No. 1940 of 2017 was disposed of accordingly.
Law Points
- Dismissal of suit for want of prosecution
- Order IX Rule 5 CPC
- Service of summons
- Willful default
- Negligence
- Commercial Appeal
- Notice of Motion
- Chamber Summons
