Canara Bank vs Araveli Hillwine Sale ...
1980 Latest Caselaw 412 Del

JUDGMENT

Sultan Singh, J.

(1) This is a revision petition under Section 115 of the Code of Civil Procedure (hereinafter called 'the code') by the plaintiff-petitioner challenging the order dated 15th February, 1979 of the trial court dismissing its suit against defendant Nos. I to 4 only and the order dated 27th February, 1979 dismissing its application under Order 9, rule 4 of the Code. The plaintiff petitioner instituted a suit for the recovery of Rs. 32,386.14 under Order 37 of the Code alleging that the defendants were granted overdraft facilities to the extent of Rs. 50,000, that they executed a demand promissory note dated 10th December, 1974 besides cash credit agreement of the same date. It is further alleged that the defendants subsequently executed fresh promissory note dated 13th March, 1975 besides other documents and that they availed of overdraft facilities and -as such a sum of Rs. 32,386.14 is outstanding and due to the plaintiff-bank: from the defendants. The plaintiff thus filed suit on 4th March, 1978 claiming the said amount of Rs. 32,386.14 besides future interest at 17 per cent per annum from the date of the suit till realisation.

(2) The summons of the suit were issued in Form No. 4 in Appendix B of the Code. Form No. 4 in Appendix B is the summons in the summary suit as amended by the Code of Civil Procedure (Amendment) Act, 104 of 1976. The defendants entered appearance on 20th April, 1978 by filing their addresses for service of notices on them. Thereafter it appears that there was no Presiding Officer in the trial court on various dates. On 1st September, 1978 an application for summons for judgment under Order 37 rule 3(4) of the Code as amended was filed and summons for judgment was ordered to be issued to defendants on filing process fee. The proceedings were adjourned to 20th September, 1978. There was no Presiding Officer in the court as he had gone to Japan. The suit was adjourned to 9th October, 1978 on which date also there was no Presiding Officer. The suit stood adjourned to 19th October, 1978 when summons for judgment was again ordered to be issued to the defendants and the proceedings were adjourned to 22nd November, 1978 on which date again he Presiding Officer was on leave and the suit was adjourned for proper orders to 1st December, 1978. Although 1st December, 1978 was the date for proper orders yet the trial court passed the following order:

"PRESENT:Shri Vijay Gupta, Advocate for the Plaintiff.

PROCESSfee not filed. Request is made. No ground. However, in the interest of justice plaintiff is granted an opportunity. Issue summons for judgment to the defendants under Order 37 rule 3(4) Civil Procedure Code on process fee filed today. Put up on 16-1-1979".

On the adjourned date 16th January, 1979 the counsel for the plaintiff and defendant No. 5 were present. It was reported that other defendants were not served. The other four defendants were ordered to be served for 15th February, 1979. Process fee and registered covers were required to be furnished within three days. This order appears to be a wrong order. Summons for judgment ought to have been issued to defendants I to 4 and the proceedings in the suit ought to have been adjourned for proper orders as the summons for judgment requires a defendant to file an application for leave to defend. The order does not state whether the defendants were to be served with summons of the suit or summons for judgment. It appears that no process fee or registered cover was filed by the plaintiff. The suit came up for hearing on 15th February, 1979 and the following order was passed:

"PRESENTShri Vijay Gupta Advocate for plaintiff Defendant No. 5 in person.

PROCESSfee not filed by the plaintiff for service of defendant Nos. I to 4. I find that the plaintiff is not prosecuting the case properly, resulting delay. Hence I dismiss the suit against defendant Nos. I to 4. For reply to come up on 27th February, 1979".

The plaintiff on 21st February, 1979 filed an application under Order 9 rule 4 read with Section 151 of the Code alleging that 15th February, 1979 was fixed for report regarding the service of summons for judgment on defendants 1 to 4, that defendant No. 5 had already been served, that the suit against defendants I to 4 was dismissed for non-prosecution and the suit was adjourned to 27th February, 1979 for filing reply by the plaintiff to the application of defendant No. 5 for leave to defend the suit. The plaintiff in this application further states that after adjournment on 16th January, 1979 the plaintiff's counsel's clerk Mr. F. U. Hashmi had prepared the process fee form and took the same to the Ahlmad of the trial court but he was not available as he had gone in connection with some official work and the counsel's clerk was informed to come the next day for filing the process fee, that the clerk of the counsel fell sick and could not attend the counsel's office until 11th February, 1979 during which period the plaintiff's counsel was under bona fide impression that the process fee had already been filed, that on 15th February, 1979 counsel came to know that the process fee was not filed, that the omission to file process fee was bona fide and was not intentional in any way, that the plaintiff was prevented by sufficient cause from taking the necessary steps. Process fee along with summons for judgment in Form 4A were attached with this application and a request was made that the order dated 15th February, 1979 dismissing the suit be set aside. The trial court passed the following order on this application on 21-2-79.

"PRESENT:Shri Vijay Gupta, Advocate for applicant.

PUTup on 27-2-1979 with the file".

SD/-

ADJ.21-2-79

This application is supported by the affidavit of F. U. Hashmi, clerk of the plaintiff's counsel. The application it appears was placed before the court along with the record of the suit and the following order was passed on 27th February, 1979 by Mr. G. S. Dakha. Additional District Judge, Delhi:

"THISis an application under O.IX rule 4 read with Section 151 Civil Procedure Code for the restoration of the suit dismissed against defendant Nos. I to 4. The Id. counsel for the applicant states that he brought the process fee but the Ahlmad of the court was not present and so he could not deposit the process fee. On 21-2-79 the counsel for the applicant appeared and submitted as abovementioned. On enquiry to produce the process fee which was not handed over to the Ahimad, the learned counsel has failed to produce the same and later on brought a process fee with a stamp of Rs. 1.50 of that date. It does not show that it was purchased on 17th January, 1979. The order was to pay process fee and registered A.D. within 3 days. No registered letter has been produced by the applicant to show his bona fide to prosecute the case. I find there is no merit in this application. It is dismissed.

SD/-Gurdial Singh Dakha

ADJ/27-2-79."

It appears that the plaintiff on 8th March, 1979 filed an application under Order 47 rule I of the Code for review of the two inqugned orders dated 15th February, 1979 and 27th February, 1979 on various grounds. But the review application appears to have been dismissed on 10th August, 1979. The suit against defendant no. 5 also appears to have been dismissed in default on that date. It is stated on behalf of the plaintiff that an application under Order 9 rule 9 read with Section 151 of the Code supported by an affidavit was filed on 10th August, 1979 in the trial court wherein evidence was recorded but the proceedings were stayed by the trial court sine die as the records were sent to this court in connection with this revision. Counsel for the plaintiff states that proceedings for restoration of its suit against defendant No. 5 are however still pending and that the present revision pertains to the restoration of its suit against defendants I to 4 only. The plaintiff's suit is based on the demand promissory note. It is to be tried under Order 37 of the Code. Rules 1, 2 and 3 of Order 37 of the Code were substituted by the Amendment Act, 1976 with effect from 1st February, 1977. It appears that the provisions of the amended rules of Order 37 have not been appreciated and the suit has not been tried in accordance with law. Prior to amendment, Order 37 of the Code was applicable to suits on negotiable instrument but after amendment it has also been made applicable to suits for recovery of debts, or liquidated demand in money on the basis of written contract as detailed in rule I. Under rule 2 the Plaintiff is required to make a specific allegation that the suit is filed under Order 37 of the Code. The summons are to be issued in Form No. 4 in Appendix B of the Code. This form requires the defendant to put in appearance within ten days of service and he is notified that in case of default the plaintiff would be entitled to a decree after expiration of ten days. The form further notifies the defendant that if he puts in appearance the plaintiff would serve summons for judgment and the defendant would be entitled to apply for leave to defend. The defendant thus may apply for leave to defend within ten days of service for summons for judgment. This summons as required under Order 5 rule I of the Code is to be signed by the Judge and is to be sealed with the seal of the Court. Rule 2(3) of Order 37 provides that the defendant shall not defend the suit unless he puts an appearance and in default of appearance, the allegation in the plaint are deemed to be correct and the plaintiff would be entitled to a decree. Under rule 3(1) the plaintiff is to serve on the defendant the summons in Form No. 4 together with copy of the plaint and annexures thereto. The defendant within 10 days of service of the summons etc. is required to file his address for service of notice on him in court. Besides filing his address for service the defendant under rule 3(3) is also required to serve a notice of such appearance to the plaintiff or his counsel. Under rule 3(2) all notices or summons thereafter if left at the address given by the defendant, are deemed to have been duly served upon him. It is thus necessary that the summons in Form No. 4 together with copy of the plaint and annexures are served by the plaintiff upon the defendant who is to file the address in court and to give notice of such appearance to the plaintiff or his counsel. If the defendant fails to put in appearance the plaintiff's suit is to be decreed, and if he fails to put in appearance within 10 days the delay in entering appearance may be condoned by the court on showing sufficient cause under rule 3 (7). From the record of the present case it does not appear whether the served defendants ever served any notice of their appearance upon the plaintiff or its counsel. The plaintiff's counsel contends that without notice under rule 3(3) by the served defendants there was no appearance of the defendants in accordance with law. It may be so. But the learned counsel for defendants I to 4 submits that the plaintiff filed an application for summons for judgment and therefore the plaintiffs is deemed to have waived this request. He also states that in fact such notice of appearance was sent to the plaintiff on behalf of the defendants. I need not enter into this controversy as the plaintiff has already filed an application for summons for judgment. But it must be held that filing of address in court for service of notice on the defendant and notice of such appearance to the plaintiff or his counsel is necessary. The defendant after service of notice of appearance upon the plaintiff or his counsel may also place on record a proof of service of notice of appearance on the plaintiff or his counsel to avoid controversy.

(3) Under rule 3(4) the plaintiff is required to serve on the defendant a summons for judgment in form 4A in Appendix B together with an affidavit varifying the cause of action, the amount claimed and also stating that the defendant has no defense to the suit. The 'cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to the judgment of the court. In other language it is bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in the suit. It is on the basis of this affidavit that the defendant is to apply for leave to defend within ten days of service of summons for judgment upon him under rule 3(5). The provision to subrule (5) provide the circumstances for the grant or refusal of leave to defend to the defendant. Sub-rule (7) provides for condensation of delay in filing application for leave to defend or entering appearance by the defendant. If leave to defend is granted the suit is to be tried as an ordinary suit (rule 7 of Order 37 of the Code). Thus it would be seen that procedure under Order 37 rules I to 3 has been entirely changed. Prior to amendment of Order 37 of the Code the defendant was required to apply for leave to defend within 10 days of service of summons of the suit and the court was to grant or refuse leave to defend. After the grant of leave under the old procedure also, the suit was to be tried like any other ordinary suit. From the order sheet dated 16th January, 1979 of the suit, I find that the trial court has not applied the new procedure provided in rule 3 of Order 37 of the Code. The trial court has issued summons for 15th February, 1979 to the defendants although the defendants had put in appearance and the plaintiff has applied for summons for judgment. Again from the impugned order dated 15th February, 1979 it is not clear whether the process fee was not filed for service of summons in the suit or for service of summons for judgment. It appears that the trial court presumed that the defendants were not served on account of the failure of the plaintiff to put in process fee and therefore the suit against defendants I to 4 was dismissed. This is not the correct position. As already stated, the defendants were served with the summons of the suit in form No. 4 and they had put in their appearance on 20th April, 1978. The process fee, it appear was not filed for the issue of summons for judgment and therefore it seems to me that the trial court had no jurisdiction to dismiss the suit itself for not filing the process fee. At the most the trial court could have dismissed the application for summons for judgment or passed some other order in accordance with law as the counsel for the plaintiff was present.

THElearned counsel for defendants I to 4 argues that the impugned judgments dated 15th February, 1979 and 27th February, 1979 are not orders and that no revision under Section 115 of the Code is maintainable. His contention is that order dated 15th February, 1979 is an order passed under Order 9 rule 2 of the Code. Order 9 rule 2 of the Code reads :

"WHEREon the date so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee of postal charges (if any) chargeable for such service, (or to present copies of the plaint or concise statements, as required by rule 9 of Order VII) the court may make an order that the suit be dismissed :

PROVIDED that no such order shall be made, if, notwithstanding such failure, the defendant attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer"

He submits that when a suit is dismissed under rule 2 the remedy of the plaintiff is under Order 9 rule 4 of the Code which is as under : "WHEREa suit is dismissed under rule 2 or 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for (such failure as it is referred to in rule 2), or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."

His contention is that rule 4 is comprehensive. The plaintiff has two remedies : (i) to file a fresh suit or (ii) to apply for an order to set aside the dismissal on satisfying that there was sufficient cause for his failure to pay the process fee for service. As regards order dated 27th February, 1979 his contention is that after the dismissal of the application under Order 9 rule 4 of the Code the suit of the plaintiff stands finally decided. In other words, the suit of the plaintiff stands dismissed and that the order dismissing the application under rule 4 is a decree and therefore the same is appealable under Section 96 of the Code. I do not agree that the two impugned orders cannot be challenged under Section 115 of the Code. The order dated 15th February, 1979 is an order passed by the trial court exercising jurisdiction not vested in it. The trial court had no jurisdiction to dismiss the suit when the process fee with regard to the service of summons for judgment was not filed. Thus the order dated 15th February, 1979 is reviseable under Section 115 of the Code. The order dated 27th February, 1979 it seems to me is not a decree within the meaning of Section 2(2) of the Code which reads as under :

"(2)'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include

(A)any adjudication from which an appeal lies as an appeal from an order, or

(B)any order of dismissal for default.

EXPLANATION-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

'Order' has been defined in Section 2(14) of the Code which reads as under :

"ORDER"means the formal expression of any decision of a Civil Court which is not a decree".

'Judgment' has been defined in Section 2(9) of the Code which reads as under :

'JUDGMENT'means the statement given by the Judge of the around of a decree or order"

Thus judgment in suport of an order or decree are the grounds of decision. The definition of the word 'order' as a matter of fact is a negative one. It says that a decision which is not a decree is an order. Thus one has to rely upon the definition of the word 'decree' . The decree is a formal expression of a decision conclusively determining the rights of the parties, in controversy in the suit. The definition of decree however, excludes two types of orders which are not decrees : (i) a decision from which an appeal lies as an appeal from an order i.e. under Section 104 read with Order 43 rule I of the Code and (ii) any order of dismissal for default. Admittedly the impugned orders dated 15th February, 1979 and. 27th February, 1979 are not appealable and are not covered by Section 2(2)(a) of the Code. The question still remains whether the impugned orders are orders of dismissal for default within the meaning of Section 2(2)(b) of the Code. Dismissal for default. it seems to me means dismissal of the proceeding on account of some neglect on the part of the plaintiff. Neglect may be failure to appear when the suit is called for hearing or failure to prosecute the suit. The word. 'default' means 'neglect'. It therefore seems to me that if the plaintiff fails to put in the process fee or he fails to prosecute an action, or fails to appear when the suit is called or hearing, he is deemed to be in default and if the suit and the action is dismissed by passing an order to that effect such an order is an order of dismissal for default within the meaning of Section 2(2)(b) of the Code. It is admitted that the order dated 15th February, 1979 is an order of dismissal. It would be an order of dismissal for default because the plaintiff failed to put in the process fee. In other language the plaintiff failed to prosecute the suit. It means it was negligent and therefore its suit was dismissed. Thus the order dated 15th February, 1979 being an order of dismissal for default is not a decree and as such not appealable. This order is however open to revision under Section 115 of the Code as the trial court dismissed, the suit although it had no jurisdiction to dismiss the same for failure to pay the process fee for the issue of summons for judgment. The trial court could have dismissed the application for summons for judgment or passed any other appropriate order in accordance with law. The order dated 27th February, 1979 does not decide any matter in controversy between the parties on merits. The plaintiff's application under Order 9 rule 4 has been dismissed meaning thereby that its suit which was dismissed for default of payment of process fee had not been restored. The plaintiff's suit has not been decided on merits. This order by any stretch of imagination cannot be an expression of opinion by the trial court upon the rights of the parties. This was only- a dismissal on a ground wholly apart from the merits of the case.

Iam therefore of the view that the two impugned judgments are not decrees but orders and for this conclusion I am supported by the judgments hereinafter mentioned, l" Re N. Kayambu Pillai, Air 1941 Madras 836(1) (F.B.) it was held that an order dismissing an appeal for nonpayment of court fee is an order of dismissal for default within the meaning of Section 2(2) of the Code. In Kunwar Jagdish Kumar Singh vs. L. Harikishen Das, Air 1942 Oudh 362(2) it has been observed, "Default does not necessarily mean default of appearance. It also includes default of prosecution". In Tafazzul and others vs. Shah Mohammad and others the following observation appears :

"The word 'default' is not qualified by any adjective and I fail to see why any words should be imported in the section so as to confine its operation to dismissal for default in appearance only. It is a well recognised canon of construction that it is the duty of the court to interpret a section as it exists without adding to it and without subtracting from it........................ In my opinion the word 'default' is not confined to a default in appearance only and includes default of all kinds. This interpretation seems to be consonant with the central idea governing the definition of decree in Section 2(2), Civil P.C. according to which a decree is a formal expression of an adjudication............. ... ."which ............. conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit............". A dismissal for default of appearance does not determine any matters in controversy. Similarly a dismissal for default on any other ground, also does not determine any matter in controversy. There seems to be no reason why Legislature should have intended that dismissal for one kind of default will not amount to a decree whereas dismissal for another kind of default will amount to a decree."

in the Gauhati Bank Ltd. vs. Baliram Dutta and others, Air 1950 Assam 169(4) it has been observed, "The word 'default' in this definition is not limited in its operation nor has it been qualified in any way. If it is held that the default in the definition refers to cases of default specifically dealt with in the Code, it would be reading something into the definition which is not contained therein............... An order dismissing a suit for non-payment of adjournment costs is not appealable either as a decree or as an order. A petition of revision against such an order would however lie and it would be open to the High Court to set aside the order where in the exercise of its revisional jurisdiction it finds that interference is called for or justified". In Re. Chunduru Venkata Subrahmanyam, it has been held that the term 'default' in Section 2(2)(b) is not limited to one of appearance only but it includes default of prosecution also. In Maharaja Pateshwari Prasad Singh vs. Aditya Prasad and others, it was held that an order dismissing an appeal for default did not amount to a decree within the meaning of Section 2(2) of the Code of Civil Procedure and consequently the decree of the trial court did not merge in the order of the appellate court. It was further held that the dismissal of appeal for want of prosecution, upon the appellant's failure to make good the deficiency in court fee is dismissal for default within the meaning of Section 2(2) of the Code of Civil Procedure and docs not amount to a decree. Learned counsel for the respondent however contends that the word 'default' in Section 2(2) of the Code means only default of appearance. He relies upon Budhulal Kasturchand vs. Chhotelal and others, wherein it was held that an order dismissing a suit for default in payment of adjournment costs is appealable as a decree, that the word 'default' in Section 2(2) of the Code refers only to non-appearance of parties as specifically referred to in Order 9 and in Order 17 rule 2, Civil Procedure Code and that it does not include any other default. The Madhya Pradesh High Court discussed, some of the judgments referred to earlier by me. After my careful consideration of the meaning of the word 'default' as used in Section 2(2)(b) of the Code, I prefer to adopt the view experienced by various courts other than Madhya Pradesh High Court with all respects to the learned Judges deciding Budhulal Kasturchand (Supra). I am therefore of the view that its ambit cannot be restricted to default of appearance only. It means default of any nature on the part of the party concerned. It may be default of appearance, default of non-prosecution, default of non-payment of costs etc. etc. Thus I hold that order dated 15th February, 1979 is an order open to revision under Section 115 of the Code and the order dated 27th February, 1979 being not a decree is not appealable under Section 96 of the Code. The order dated 27th February, 1979 is also an order against which no appeal lies and therefore the same can be challenged in revision under Section 115 of the Code. The trial court by passing the order dated 15th February, 1979 has, exercised jurisdiction not vested in it by law. No power is conferred upon a court to dismiss a suit for failure to pay the process fee with respect to the application for summons for judgment and when the plaintiff is present. As regards the Impugned order dated 27th February, 1979 it seems to me that the trial court in exercise of its jurisdiction has acted illegally and with material irregularity. The plaintiff in his application under Order 9 rule 4 of the Code explained the circumstances on account of which the process fee for sumumons for judgment was not filed. He states that his clerk F. U. Hashmi prepared the process fee form and took the same to Ahlmad of the court biit the Ahlmad was not available as he had gone in connection with some official work. The clerk thereafter fell sick and could not attend to the advocate's work until 11-2-79 and the counsel for the plaintiff remained under the bona fide impression that the process fee had been filed. It was only on 15th February, 1979, the date of hearing fixed in the case, that the counsel for the plaintiff came to know that the process fee could not be filed on account of the said facts supported by affidavit of the Advocate's clerk. The trial court, however, in a summary manner dismissed the suit on 15th Februffffary, 1979 observing that, "I find that the plaintiff is not prosecuting the case properly, resulting delay; Hence I dismiss the suit against defendants I to 4". This observation is not justified, if reference is made to previous procecdings of the case. The defendants entered appearance on 20th April, 1978. There were adjournments on account of the absence of the Presiding Officer of the court from time to time for one reason or the other. The application for summons for judgment was filed on 1st September, 1978 and summons for judgment was ordered to be issued. On the next date, again there was no Presiding Officer in the trial court and the matter was adjourned to 9th October, 1978 and again there was no Presiding Offiecr and the suit was adjourned to 19th October, 1978 when fresh summons for judgment was ordered to be issued and on the next date the Presiding Oflicer was on leave and the suit was adjourned for proper orders to 1st December, 1978. It is well known that if service has been effected on the defendant in an ordinary suit he is not bound to appear before the court .official when the Presiding Officer is .not holding the court. The trial court, however, in the order sheet dated 1st December, 1978 observed, "Process fee not filed. Request is made. No ground." But there was no Presiding Officer on 22nd November, 1978 and if the plaintiff has not paid' the process fee it was immaterial. From the order sheet, I find that the plaintiff has been prosecuting the case diligently but it was on account of the absence of the Presiding Officer of the court on account of leave or other circumstances that there were adjournments from time to time- The trial court while dismissing the application by order dated 27th February, 1979 has not adverted to the circumstances mentioned in the application supported by an affidavit as narrated above. On the contrary, the trial court in its order dated 27th February, 1979 observes "the learned counsel for the applicant states that he brought the process fee but the Ahlmad of the court was not present and so he could not deposit the process fee. On 21st February, 1979 the counsel for the applicant appeared and submitted as above-mentioned. On enquiry to produce the process fee which was not handed over to the Ahlmad, the learned counsel has failed to produce the same and later on brought a process fee with a stamp of Rs. 1.50 of that date. It does not show that it was purchased on 17th January, 1979". On a reference to the order sheet dated 21st February, 1979 I find that the application was ordered to be put up on 27th February, 1979 with the file and there is no reference to any of these matters as observed by the trial court. On the contrary the process fee form bearing the court fee stamp of Rs. 1.50 is attached with the said application under Order 9 rule 4 of the Code. It shows that the court fee was sold by the Stamp Vendor on 17th January, 1979 which date is given by him under his initial. I do not appreciate how the trial court says "Process fee does not show that it was purchased on 17-1-79". The trial court has not given any reason to disbelieve the affidavit of the clerk of the plaintiff's counsel. In fact the affidavit and the facts 'narrated in the application have not been discussed at all in the impugned judgment dated 27th February, 1979. Failure to consider the material facts in support of such an application, to me it appears, is material irregularity in the exercise of jurisdiction by a court. By its order the court has thrown away the suit of the plaintiff. From the application it appears that there was sufficient cause for non-pay- ment of process fee for issue of summons for judgment as per order passed on 16th January, 1979.

(4) Under the circumstances I find that the impugned order dated 27th February, 1979 is liable to be set aside because the trial court cannot dismiss the suit in the garb of dismissing application for summons for judgment. The plaintiff was present. His default was non-payment of process fee for issue of summons for judgment. Nothing has been pointed out by the learned counsel for the respondent under what powers the trial court could have dismissed the suit when process fee for issue of summons for judgment was not filed. The trial court thus exercised a jurisdiction not vested in it by law by dismissing the suit on 15th February, 1979 against defendants Nos. 1 to 4.

(5) Learned counsel for the respondents further submits that the petitioner is challenging the orders dated 15th February, 1979 and 27th February, 1979 by a single revision petition under Section 115 of the Code. He submits that the petitioner should make a choice whether its revision is against the order dated 15th February, 1979 or 27th February, 1979. Learned counsel for the petitioner in reply submits that both the orders are liable to be set aside under Section 115 of the Code. He says that he filed an application under Order 9 rule 4 of the Code for setting aside the order dated 15th February, 1979. The purpose of the two orders is the same i.e. dismissal of the suit for default of prosecution i.e. non-payment of process fee. He further says that if order dated 27th February, 1979 is set aside under Section 115 of the Code automatically there would be restoration of the suit and thus setting aside the order dated 15th February, 1979. I find substance in the submission made by the petitioner. It seems to me that setting aside of order dated 27th February, 1979 also means setting aside of the order dated 15th February, 1979. It is therefore, held that the revision as filed is maintainable.

(6) Lastly the learned counsel for the respondents submits that the suit was filed against five defendants, and that only defendants I to 4 are parties to the present revision petition and defendant No. 5 is not a party to the revision petition and therefore the revision petition is not maintainable. It is correct that the plaintiff filed the suit against the fiVe defendants. Its suit was dismissed for default of prosecution i.e. non-payment of process fee against defendants 1 to 4 only on 15th February, 1979 because defendant No. 5 was present and he had also filed an application for leave to defend. It seems to me that defendant No. 5 is not a necessary party to the present revision petition. If the impugned order is set aside against defendants I to 4, no prejudice is likely to be caused to defendant No. 5. He is a party to the promissory note in suit. The negotiable instrument appears to have been executed by all the five defendants. The liability of all the defendants is joint and several. The plaintiff is entitled to recover from any of the defendants. If its suit is dismissed against defendants 1 to 4 only he has a right to recover against the fifth defendant and if the fifth defendant is not present, the plaintiff has a right to recover from other four defendants. There is no likelihood of any conflicting order by restoring the present suit against defendants I to 4 only. Defendant No. 5 is neither a necessary nor a proper party to the present proceedings under Section 115 of the Code. Failure to implead defendant No. 5 in this revision petition is therefore immaterial.

(7) The counsel for the plaintiff also submits that he is not liable to pay process fee for the issue of summons for judgment as such summons under rule 3(4) of Order 37 of the Code is to be served by the plaintiff and not by the court. He says the summons under Form 4 in Appendix B requires signatures and seal of the Court while there is no such requirement in Form 4A in Appendix B i.e. summons for judgment. No rules either for service of summons in the suit with copy of the plaint and annexures or for service of summons for judgment by a plaintiff hence been brought to my notice. It seems these are no such rules. Hence summons in the suit and summons for judgment must be served through the process serving agency of the court and therefore process fee is to be paid by the plaintiff. All summons or notices under Order 37 of the Code in the absence of specific rules are to be served through the Process serving agency of the court or by post.

(8) I set aside the two orders dated 15th February, 1979 and 27th February, 1979 of the trial court and restore the suit of the plaintiff against defendants I to 4 for decision in accordance with law. No observation is made with regard to the dismissal of suit against defendant No. 5 vide order dated 10th August, 1979 of the trial court as plaintiff's application is pending. The plaintiff and defendants I to 4 are directed to appear before the trial court on 2nd December, 1980. Parties are left to bear their own costs.