HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No:2719 OF 2011 ORDER: This is a revision under Article 227 of the Constitution of India to revise the order dated 15.6.2011 passed by the Junior Civil Judge, Bantumilli, Krishna District, in I.A.No.74 of 2011 in I.A.No.319 of 2009 in O.S.No.59 of 2005. The petitioner-plaintiff filed the above suit for the relief of declaration of title and permanent injunction. On the death of the 2nd respondent-defendant, the petitioner-plaintiff filed I.A.No.319 of 2009 under Order 22 Rule 4 of CPC on 6.10.2009 seeking to implead respondents 3 to 5, who are the legal heirs of the deceased 2nd respondent-defendant, as defendants 3 to 5 in the suit. The Court below issued notices to respondents 3 to 5 on 30.10.2009 and posted the matter to 2.12.2009. Thereafter, the matter was adjourned from time to time and posted to 19.1.2010. Till then, the petitioner-plaintiff did not choose to pay process for issuance of notice to respondents 3 to 5 and at his request, again the matter was adjourned to 25.2.2010. On 25.2.2010, the process was paid with delay petition and the same was allowed and the notice was ordered to the respondents 3 to 5 and the matter was posted to 31.3.2010. As the notices on the respondents were remained unserved till 1.12.2010, the Court below ordered fresh notice and posted the matter to 4.1.2011. As the process was not paid, the matter was adjourned to 10.2.2011. On 10.2.2011, the petitioner- plaintiff and his counsel were called absent and there was no representation till 5 p.m., though the matter being passed over. Hence, the Court below dismissed I.A.No.319 of 2009 for default without costs for non-payment of process. On that, the petitioner- plaintiff filed the impugned I.A. seeking to restore I.A.No.319 of 2009. The Court below while placing reliance on proviso to Order IX Rules 2 and 5, and the judgment of this Court in D. Devadanam Vs. M. Jnana Prakasam and another[1] held that the dismissal of the present suit was under Rule 5 and not under Rule 2 of Order IX CPC and for that reason, the petition for restoration is not competent in law, dismissed the I.A. It is pertinent to note that Order IX Rule 2 of CPC contemplates that where on the day 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 or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by Rule 9 of Order VII, the Court may make an order that the suit be dismissed. Proviso to Order IX Rule 2 provides 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. Order IX Rule 5 contemplates dismissal of suit where plaintiff, after summons returned unserved, fails for seven days (Seven days is substituted for ‘one month’ by Amendment Act 46 of 1999 w.e.f. 1.7.2002) to apply for fresh summons. Order IX Rule 5 (1) reads as under: “Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of seven days 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 a fresh summons, the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that… (a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or (b) such defendant is avoiding service of process, or (c ) there is any other sufficient cause of extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit. (2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit. Admittedly, in the present case, when fresh notice was ordered to the legal representatives on 1.12.2010, the petitioner is under obligation to pay necessary process fee within seven days. But he failed to do so. This itself goes to show that the petitioner-plaintiff is not diligent in pursuing the matter. In this view of the matter, I have no hesitation to hold that no irregularity is discernible in the order impugned herein and hence, the revision petition is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. _____________________ Justice A. Gopal Reddy Date:19th August, 2011 Nn. HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No:2719 OF 2011 19.8.2011 Nn [1] 1976 ALT 165 (NRC)