M.M.S. Bedi, J.@mdashPlaintiff-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 Election 151 Code of Civil Procedure, for restoration of the suit against Defendant Nos. 4, 5, 8 and 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 and 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 and 22, are also going to be benefited, as such, the application for summoning Defendant Nos. 4, 5, 8 and 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 Code of Civil Procedure, to show that it there was sufficient reasons for issuing notice to the Defendants.
3. Counsel for the Petitioner has vehemently contended that the Plaintiff had been directed to serve Defendant Nos. 4, 5, 8 and 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 and 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 and 22, was dismissed by the Court of 06.08.2007.
4. 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 3 A Code of Civil Procedure, 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.
5. The learned Counsel for the Petitioner has urged that a proforma Defendant has also got a right to be heard and that he is bound by the doctrine of res judicator even though he has joined merely as a proforma party and even though no relief was sought or claimed against him. He has placed reliance upon
6. I have gone through the said judgment. In the said case, in context to the principle of res judicator, it was required to be determined whether (i) a person who is merely a proforma party to an action and against whom no relief is claimed is bound by or entitled to the benefits of rules of res judicator. In the said case after remand of the suit by the appellate Court, the trial Court had ordered the parties and their counsel to be summoned for a particular date in July 1946. In June 1946, the Plaintiff had put in an application in the Court showing that it was not necessary to issue notice to Defendant Nos. 2 to 7, on the ground that Defendant Nos. 2 to 7 are proforma Defendants and they live in far off places and against them ex parte proceedings had already been ordered. Therefore, it was not necessary to issue notice to the said Defendants. An application for proceeding ex parte against the said Defendants was filed. The court did not agree and directed the issuance of fresh notice against the said Defendants but the judgment in Gita Ram Kalsi''s case (Supra) does not lay down any law which could be said to be relevant for the adjudication of the present petition.
7. I have carefully gone through the facts and circumstances of this case. The suit of the -Plaintiff-Petitioner qua Defendant Nos. 4, 5, 8 and 22, was dismissed by the Court on 06.08.2007. It is apparent that the suit filed by the Plaintiff in the year 1999, is at penultimate stage. The case appears to be at the stage of arguments. The contesting Defendant-Respondent No. 1, had taken up a plea before the trial Court that Defendant Nos. 4, 5, 8 and 22 are colluding with the Plaintiff and the Plaintiff never pressed service upon these Defendants. It was the duty of the Plaintiff to bring to the notice of the Court that the said Defendants have not been summoned. Silence of the Plaintiff reflected that he did not seek any relief against the said Defendants. The Plaintiff has got a right to get his suit restored by showing that sufficient cause existed for failure as is referred to in Rule 2 of Order 9 Code of Civil Procedure, for his non-appearance. The Court, in such circumstances, has got an authority to set side the dismissal and proceed with the suit in accordance with law. The provisions of Order 9 Rule 4 Code of Civil Procedure, even entitle a Plaintiff to file a fresh suit against Defendant Nos. 4, 5, 8 and 22. For the adjudication of present revision petition, the foremost thing which is required to be taken into consideration is to explain the prejudice caused to the Plaintiff or which could be caused to the Plaintiff by not restoring his suit qua the Defendant Nos. 4, 5, 8 and 22. The nature of the claim of the Plaintiff has to be considered. The Plaintiff claims a declaration that he is owner in possession of land left by his father to the extent of 1/9th share and has sought an injunction against all Defendants not to alienate or transfer the suit property beyond their share with specific portions thereof. In case his suit is decreed on the basis of natural inheritance, he would be entitled to exercise his ownership and possessory rights against the property in dispute to the extent of 1/9th share. The benefit of the decree will be bestowed upon all the Respondents as the declaration sought in favour of the Plaintiff is likely to benefit all the Defendants. The contesting Defendant No. 1 appears to be his sister, who seeks to prejudice the rights of the Plaintiff-Petitioner by propounding a Will in her favour allegedly executed by their father Sardara Singh. Respondent Nos. 4, 5 and 8 are three out of 7 heirs of Sant Kaur sister of the Plaintiff-Petitioner. Defendant No. 22, is another sister of Plaintiff-Appellant. In case the suit of the Plaintiff is dismissed and Defendant No. 1 is held to be the owner on the basis of the Will, even then, the rights of the Plaintiff will not be prejudiced by dismissal of his suit qua the above said Defendants. The trial Court has rightly dismissed the application of the Plaintiff-Appellant having been filed at a belated stage and considering the fact that no prejudice is likely to be caused to the Plaintiff-Petitioner, the rights of the Plaintiff stand adequately safeguarded by the provisions of Order 9 Rules 4 and 5 Code of Civil Procedure, by bringing separate suit subject to the law of limitation against the said Defendants. The application has earlier been dismissed. It is not out of place to observe here that mere deposit of Rs. 500/- by the Plaintiff for publication will not give a right to the Plaintiff-Petitioner, for all times to come, to claim the issuance of summons against the unserved Defendants as the provisions of Order 9 Rule 5 Code of Civil Procedure, disentitles a Plaintiff to apply for fresh summons in case he fails to take necessary steps, within 7 days, to apply for fresh summons.
