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Judgment
This petition is directed against the order of the trial Court dt. 5th May, 1984, whereby application under O. 9 R. 4 C.P.C. for setting aside the order dt. 29th Mar. 1983 was dismissed.
The plaintiff-petitioner filed a suit for the recovery of Rs. 1000/-. The Court directed the plaintiff to file duplicate summons on 29th Nov. 1982 and again on 31st Jan, 1983. In spite of these orders the plaintiff failed to file the duplicate summons. Consequently on 29th Mar. 1983 the trial Court dismissed the suit under O. 9 R. 2 C.P.C. for non-compliance of the provision of O. 7 R.9 sub-rule (1-A) of the Civil P. C. Later on the plaintiff moved an application under O. 9, R. 4 C.P.C. for setting aside the said order dt. 29th Mar. 1983. Notice of this application was served on the defendant and he contested the same. The main contention of the plaintiff was that he was under no obligation to file the duplicate summons as directed by the trial Court, and, therefore, the suit could not be dismissed under O.9 R. 2 C.P.C. However, the trial Court took the view that unless and until the order passed by the Court is set aside, the plaintiff was bound to comply with the same and on account of the non-compliance the suit was rightly dismissed under O.9 R. @ C.P.C. Consequently, the application was dismissed. Dissatisfied with the same the plaintiff-petitioner has filed this petition in this Court.
In the grounds of revision the main contention raised was that the order directing the petitioner to file duplicate summons was not provided under the Civil P. C. However, this contention is not available to the petitioner in view of the notification dated 10th Feb. 1982 issued by the High Court, whereby sub-rule (1-A) of R. 9 of O.7 C.P.C. was substituted, which reads as under:
"The plaintiff shall, within the time fixed by the Court or extended by it under sub-rule (1), file summons in the prescribed form, in duplicate, after being duly filled in, for each of the defendants and pay the requisite fee for the service thereof on the defendants".
It is, therefore, obvious that the stand taken by the petitioner before the trial Court as well as in this Court in the grounds of revision is not sustainable. In view of the said provision the plaintiff was under legal obligation to file the summons in the prescribed form in duplicate.
However, even if the suit was dismissed under O. 9 R. 2 C.P.C. for non-compliance of the provision of sub-rule (1-A) of O. 7 R. 9 of C.P.C. the suit should have been restored subsequently on payment of costs when the defendant has been duly served and was present in Court. Since the stand taken by the plaintiff-petitioner was obviously wrong he is liable to be burdened with heavy costs.
Consequently, the petition succeeds, the impugned order is set aside and the suit is restored on payment of Rs. 300/- as costs. Parties have been directed to appear in the trial Court on 4th Feb, 1985 and the suit will be proceeded with in accordance with law.
Petition allowed.