SUBBIAH THEVAR Vs. PICHAI NADAR
HIGH COURT OF MADRAS
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Ramaswami, J. -
(1.) This is a civil revision petition filed against the order made by the learned Subordinate Judge of Devakottai in I. A. No. 131 of 1950 in S. C. S. No. 75 Of 1950.
(2.) The facts are: The plaintiff filed a suit for Rs. 558-14-0 on a promissory note for Rs. 500. The suit was filed on 6-4-1950. This was taken on file and summonses were directed for 14-6-1950; Summons through court and post was ordered by 57- 1950. The defendant was not served. It was adjourned to 18-7-1950. Substituted service was ordered by 20-7-1950. The suit was called on 21-7-1950. The plaintiff lived in a remote village and therefore his vakil applied for time. Time was given till 25-7-1950. On that day the plaintiff did not appear and the vakil had not been furnished with funds to enable him to take out steps. Therefore the suit was dismissed on 25-7-1950. On 31-7-1950 an application was filed for setting aside this order of dismissal of the suit. The learned Subordinate Judge declined. Hence this revision petition.
(3.) When the civil revision petition was admitted, I find a note had been made by Viswanatha Sastri J:
"The Court below does not give any dates to show that there was default on the part of the plaintiff. When was summons due? Was there-a default for three months? Why not consider and refer to these matters in the judgment". The point for determination is whether the learned Subordinate Judge should have dismissed the suit on 25-7-1950 instead of awaiting for a period of three months under Order 9, Rule 5, Civil P. C. Order 9, Rule 5 says:
"Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of three months from the date of the return made to the Court by the officer ordinarily certifying to the Court, returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendants.. ..." Then Order 9, Rule 5 proceeds to say that the plaintiff should be given an opportunity to come forward and explain why within this there months-he was not able to take steps and when he is able to satisfy the Court that he was unable to do so, for the reasons set out in Clauses (a), (b) and (c), the Court may also extend the time.;
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