M.M.S.BEDI, J. - (1.) PLAINTIFF -petitioner has questioned the legality of order dated 12.08.2010, passed by the Additional Civil Judge (Sr., Divn.), Amloh, dismissing his application under Order 9 Rule 4 CPC read with Section 151 CPC, for restoration of the suit against defendant Nos.4, 5, 8 & 22.
(2.) THE facts, relevant for the adjudication of the controversy, are that the plaintiff-petitioner has filed a suit for declaration that he is owner to the extent of 1/9th share in the property left by his father Sardara Singh on the basis of natural succession whereas defendant No.1 Sinder Kaur his sister has propounded a Will in her favour. The suit was filed on 29.09.1999. The evidence has been led by the parties. The plaintiff and contesting defendants have closed the evidence in the year 2005. The plaintiff-petitioner claims that defendant Nos.4, 5, 8 and 22, had not been served as per record. The order was passed to serve the respondents by publication on 17.11.1999 but the Presiding Officer vide order dated 06.08.2007, declined the request of the plaintiff petitioner to summon defendant Nos.4, 5, 8 & 22, holding that it was the responsibility of the plaintiff-petitioner to get the service effected upon the said defendants before leading his evidence. It was held, inter alia, that until and unless Will dated 13.11.1975, is proved, the property will devolve as per natural succession. It was also held that in case the plaintiff was able to prove his case and defendant No.1 failed to prove his Will, defendant Nos.4, 5, 8 & 22, are also going to be benefited, as such, the application for summoning defendant Nos.4, 5, 8 & 22, after six years of filing of the suit was declined. The petitioner had filed a revision petition before this Court which was disposed of vide order dated 09.10.2009, with an observation that there is a specific remedy available to the petitioner to move an application under Order 9 Rule 4 CPC, to show that it there was sufficient reasons for issuing notice to the defendants. Counsel for the petitioner has vehemently contended that the plaintiff had been directed to serve defendant Nos.4, 5, 8 & 22, vide order dated 17.11.1999, by publication for 10.02.2000. The plaintiff had filed an application for depositing of necessary publication fee in the Court. Publication fee of Rs. 500/-, was deposited by the plaintiff. It is contended that the plaintiff has tried his level best to get the service of the above said defendants effected and that there had not been any lapse on his part. Despite the payment of requisite charges, defendant Nos.4, 5, 8 & 22, were not served by publication by the Court, as such, there was no lapse on the part of the plaintiff-petitioner. The suit of the plaintiff against defendant Nos.4, 5, 8 & 22, was dismissed by the Court of 06.08.2007.
(3.) THE trial Court has dismissed the application on the following grounds: - (i) Defendant Nos.4, 5, 8 and 22, even if not served are not going to be affected, in any manner, as their interests can be adequately protected by the plaintiff as decreeing the suit of the plaintiff would be advantageous to the said defendants in case the property devolves by natural succession. In case the property is held to be governed by the Will in favour of defendant No.1, then the property shall devolve in accordance with Will. As such, defendant Nos.4, 5, 8, and 22, can in a separate suit against defendant No.1, assert their rights. (ii) the case is fixed for rebuttal evidence and the plaintiff has been negligent in ensuring the appearance of the defendants. The suit can be effectively adjudicated even in the absence of the said defendants. (iii) The rights of the plaintiff shall not be prejudiced, in any manner, but dismissal of his suit against defendant Nos.4, 5, 8 and 22, as the suit can be decided, in their absence. The Court has got inherent powers under Order 1 Rule 3A CPC, where there is apprehension that suit of defendants may embarrass or delay the trial of the suit. (iv) Joinder of above said defendants, at this stage, would embarrass and delay the trial which is already ripe for arguments and that in case any of these defendants has got any grievance, they can separately agitate in a separate suit. The case is one of the oldest cases in the District. ;