Sulmani v. Johnraj
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR] *** CO/16/2021 Smt. Sulmani ... Petitioner Vs.
Shri John Raj ... Opposite Party Mr. Gopala Binnu Kumar, Adv.
... for the petitioner March 24, 2022 [SR] Item No.1 Counsel for the petitioner is found present.
Counsel for the petitioner files affidavit of service along with the postal receipt and undelivered envelope addressed to the opposite party containing the postal endorsement "returned due to insufficient address".
Learned counsel for the petitioner urged that the present revisional application may be taken up for hearing as there is less chance of service of notice upon the opposite party as the petitioner/plaintiff could not serve summons of the O.S.No.1 of 2020 and as such the learned court below by passing the impugned order dismissed the suit.
Perused the impugned order and from where it is seen that due to non-appearance of the plaintiff and failure on the part of the plaintiff to serve summon upon the defendant since 2.12.2020, the court below has dismissed the O.S No.1 of 2020 on 06.04.2021. Now, by filing the present application under Article 227 of the Constitution of India, the petitioner has challenged the above order.
Apparently, from the order impugned it is seen the learned court below without giving any opportunity to show cause to the petitioner for not taking proper steps for service of notice upon the defendant/present opposite party appears to have dismissed the suit by invoking provisions of Order IX Rule 2 read with Rule 5 CPC.
The order is silent that summon could not be served upon the defendant in consequence of the failure of the plaintiff to pay court
fee or postal charges, if any, chargeable for service or failure to present copies of the plaint as required under Order VII Rule 9. The order is equally silent that after return of the summon unserved the plaintiff fails to apply for fresh summons for three months. Therefore, this Court is of the view the order impugned suffers from illegality and material irregularity and is hereby set aside. The Court below is directed to restore O.S.No.1 of 2020 to its original file and number.
Moreso, non-service of notice of this revisional application upon the opposite party in the address given in the agreement of sale executed between the parties for the enforcement of which the plaintiff has filed O.S.No.1 of 2020, further prove that it will not be possible on the part of the petitioner/plaintiff to serve the notice upon the defendant/opposite party in the normal course as it appears the defendant/opposite party is avoiding the service. Under such circumstances, the petitioner/plaintiff should be given an opportunity to take necessary steps for service by invoking the provision of Order V Rule 20 CPC.
Accordingly, CO/16/2021 is disposed of.
All parties to act in terms of the copy of the order downloaded from the official website of this Court.
Urgent certified copy of this order if applied for may be supplied to the parties upon compliance of usual formalities. ( Kesang Doma Bhutia, J.)