REHMAT ALI Versus FAZAL HUSSAIN

ORDER

The second appeal is addressed against the order of Additional District Judge, Bhimber, passed on August 30, 1988 whereby the order of Sub‑Judge, Bhimber, passed on August 30, 1987, resulting in dismissal of the suit of the plaintiff‑appellant, was maintained.

2. Rehmat Ali brought a suit for declaration and possession by pre‑emption of the suit land measuring 48 kanals 15 rnarlas and 1‑1/2 sarsais out of Khewat Nos. 58/10, 109 and 113, situate in Village Kot, Tehsil Bhimber, on payment of Rs.50,000, its price. It was alleged that Muhammad Alam, Muhammad Hashim, Begum Bibi and Rani, defendants, alienated the suit land through a registered sale‑deed executed on July 7, 1986 in favour of Fatal Hussain and others, defendants No.5 to 9, in excess of their prescribed share in the suit land. In the alternative, it was alleged that the plaintiff was a co‑sharer and `yak jaddi' of the vendors, as such he enjoined a superior right of purchase in respect of the suit land. He offered to pay Rs.50,000 as price of the land and alleged that Rs.2,20,000 were entered in the sale‑deed fictitiously in order to defeat the superior right of the pre‑emptor. Fazal Hussain and others, vendees, appeared through Counsel. Mst. Rani, one of the vendors, failed to appear despite service. She was proceeded against ex‑parte. Muhammad Alam, Muhammad Hashim and Mst. Begum Bibi were reported to be residing in Pakistan. On May 6, 1987, it was ordered that the aforesaid vendee‑defendants could not be served ordinarily, therefore, substituted service be effected by issuing a proclamation in newspaper. The plaintiff was directed to deposit the requisite expenses within fortnight from the date of the order. The plaintiff‑pre‑emptor failed to deposit the necessary expenses, on which his suit was dismissed on August 30, 1987 under Order XVII, Rule 3 of the Civil Procedure Code. The appeal before the Additional District Judge failed.

3. Raja Muhammad Siddique, the learned Counsel for the appellant, argued that the provisions of Order XVII, Rule 3 of the Code were not attracted in the case for failure to deposit the process fee. Agha Ashiq Hussain, the learned Counsel for the opposite side, controverted the contention by supporting the impugned order.

4. Order 9, Rule 2 of the Civil Procedure Code postulates that where on the day fixed by the Court for the defendant to appear and answer, it is found that ' the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court‑fee or postal charges chargeable for such service, the Court may make an order that the suit be dismissed. Nevertheless, such order is not to be passed when the defendant attends the Court in person or by agent on such day. It is an express provision of law applicable to the proposition relating to failure of plaintiff to pay expenses or cost for effecting service on the defendant. Order 17, Rule 3 of the Code, next, postulates an eventuality where any party to a suit to whom time has been granted, fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court is empowered, notwithstanding such default, to proceed to decide the suit forthwith. The language used in Rule 3 explicitly provides for action of the Court resulting in a decision on failure of either of the parties to the proceedings to perform any of the functions listed above.

5. The present suit was at the initial stage when the vendee‑defendants had I already appeared and vendors were being summoned. The learned Sub‑Judge was, wrong in applying the provisions of Rule 3 Order 17 of the Code in dismissing the suit. However, this power was available to him under Rule 2 of Order 9 of the Code.

6. The order of dismissal of the suit was subject to an exception in the present case as the contesting defendants whose presence was necessary for the decision of the case were already before the Court. The defendants sought to be served were vendors. They had no interest, whatsoever, in the suit property as the same was already transferred by them through sale. Their successors‑in‑interest; however, were in a position to defend their title. But at the same time, they were a proper party. Their presence was not essential for decision of the suit.

7. In his pleadings, the plaintiff‑appellant has not described as to how much of the land was alienated in excess to the share of the vendors. The pleading is very vague. Prima facie, it suggests that the plaintiff had no cause of action on that score. However, the pleadings, when examined as a whole, do reveal that the plaintiff actually instituted the suit for possession by pre‑emption. He raised t express grounds constituting his prior right of purchase as:

(i) a co‑sharer in the suit land; and

(ii) collateral of the vendors.

When the case is considered from this angle, it has to be accepted that it is definitely a pre‑emption suit. Thus, the presence of the vendors is not essential for an effective and conclusive adjudication of the points at issue. Therefore, the omission to pay the process fee or necessary expenses for effecting service on the vendors, is not fatal warranting dismissal of the suit.

8. The rules of procedure are framed for advancing the cause of justice. These rules do provide a channel of procedure for effectual and expeditious trial of suit. The imposition of penalty listed under Rule 2 of Order 9 of‑the Code, rests on the discretion of the Court. This discretion is to be exercised sparingly only, in a case of grave negligence, and not in routine. Therefore, the omission on the part of the plaintiff, in this case, to pay the expenses for effecting substituted F service on vendors‑defendants, does not warrant penalty in the shape of dismissal of his suit, particularly including those defendants who were already served and present before the Court. The order is defective. It necessitates interference of this Court.

9. In an identical situation, in B. Surendra Mohan's case, A I R 1920, Patna 820 the order of dismissal of suit for failure of the plaintiff to file an affidavit of service of summons upon the guardians of two minor defendants, was reversed at least to the extent of the defendants present before the Court. The relevant observation is reproduced:‑‑

"We can find nothing in the Code to justify the learned Munsif in dismissing the suit as against the major defendants. What he should have done was to direct the plaintiff to proceed with his case as against the other defendants, making a note in the order sheet that the decree would not be binding upon the minor defendants. This course was not taken. The order as passed by the Munsif was clearly without jurisdiction and must be set aside. The order dismissing the suit for default is set aside."

In Ramanand Sigh's case, A I R 1921 Patna 422 (1) (D.B.), a mortgage‑suit dismissed as a whole, for defualt of the plaintiff to pay process fee for service on the guardian of a minor, one of the defendants, was restored as against all the defendants. The learned Judge, who spoke for the Court, held:

"It is clear to me that the order of the Court was not correct. The 28th February had been fixed only for the payment of process‑fees in respect of one of the defendants who was a minor, and the rest of the defendants who were adults had appeared and filed written statements. The default of plaintiff to pay process‑fees on the date fixed for the payment in respect of one of the defendants could be no justification for dismissal of the suit as against the adult defendants."

In view of the aforesaid aspect of the proposition, the appeal succeeds. The order of the learned Additional District Judge and that of the Sub‑Judge are hearby set aside and the. case is restored to the rile of Sub‑Judge, Bhimber, for its decision‑on merits. The parties are directed to appear before the trial Court on February 17, 1990.

M.B.A./400/H.CA. Appeal accepted.