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Judgment
We are of opinions that the view taken by the Munsiff in this casse is incorrect having regard to the wording of the order of his predecessor dated
28th Assuj 1988. The facts of the case are given in the referring order of one of us. On the 28th Assuj 1988 the plaintiff made a statement
declaring in court that he was unable to discover the whereabouts of the defendant whereupon the Munsiff consigned the file to the record dakhil
daftar. This is not a final order. In Order 9, rule 5 it is laid down that where, after a summons has been issued to the defendant, 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 fresh summons the court shall make an order that the suit be dismissed as against such
defendant. In the present case no order of dismissal of the suit was passed, so in our opinion the suit had not terminated. An order to consign the
file to the record is not an order of dismissal which would put an end to the pendency of the suit. We consider the suit to have been still pending
when on 30th Sawan 1988 the plaintiff applied for the issue of fresh summons to the defendant. For these reasons the trial court ought to have
issued the summons as desired by the plaintiff and should not have dismissed the plaintiff's application.
Taking this view it is unnecessary to enquire further whether the amendment of rather reduction of the period from one year to three months in the
State law subsequent to 28th Assuj 1988 has any bearing on the suit or not.
We set aside the order of 30th Sawan 1989 and direct that the Munsiff to issue a summons to the defendant and proceed with the suit according
to law.
Proceedings against the defendant here have been taken ex parte.
Costs here and heretofore shall abide the result.