JUDGMENT
Hemant Gupta, J.
1. The plaintiff is in revision aggrieved against the order dated 5.10.2002, passed by the Seamed Trial Court whereby the suit was dismissed against defendants No. 6 to 8 for non-filing of process fee and Munadi expenses as well as order dated 10.9.2003 whereby the application for recalling of the order dated 5.10.2002 under Order 9 Rule 4 of the Code of Civil Procedure was dismissed.
2. It is the case of the plaintiff that defendants No. 6 to 8 were served on 26.9.2002 but the said service was not considered satisfactory and the case was adjourned to 5.10.2002 for effecting service by way of Munadi. Since the process fee and Munadi expenses could not be deposited, the suit was dismissed against defendants No. 6 to 8 an in terms of Order 9 Rule 2 of the code of Civil Procedure, The subsequent application has also been dismissed without adverting to the fact that defendants No. 6 to 8 were, in fact, served.
3. There is no doubt that the plaintiff has not complied with the order dated 26.9.2002 whereby the plaintiff was called upon to furnish the process fee for effecting service upon defendants No. 6 to 8 by way of Munadi but the fact remains that the case was adjourned to 5.10.2002 i.e. for 10 days. It is explained in the application itself that the Legal Clerk of the plaintiff could not note down that process fee is required to be filed and, therefore, default in furnishing of process fee should not result into penal consequence of dismissal of the suit itself.
4. After hearing learned counsel for the parties, I find that the orders passed by the learned trial Court on 5.10.2002 and subsequently on 10.9.2003 are not justified in law. It has not been found that the plaintiff was contumaciously negligent in prosecuting the case. The mere default of non-filing of process fee and Munadi fee etc. on one date of hearing should not entail dismissal of suit under Order 9 Rule 2 of the Code of Civil Procedure. The said fact was brought to the notice of the trial Court but the learned trial Court had declined to recall the order which is wholly unjustified.
5. Consequently, the revision petition is allowed and the impugned orders dated 5.10.2002 and 10.9.2003 are set aside. The petitioner shall take steps for serving defendants No. 6 to 8 by depositing process fee and Munadi fee within the time to be allowed by the learned trial Court.