JUDGMENT
Y.K. Sabharwal, J.
(1) This revision is directed against the order of the trial court dated 12 the December 1986 dismissing the suit for non-prosecution. After the passing of order dated 12th December, 1986 the petitioner bad filed an application under Order 9, Rule 4 of the Code of Civil Procedure for recalling the order dismising the suit. The said application was also dismissed by the learned Additional Judge Small Cause, Delhi on 15th January 1987. Both these orders are impugned in this petition. The respondent has refused to accept notice. I therefore, consider it as sufficient service. No one is present on his behalf. Since the matter is a short one I proceed to judgment.
(2) The plaintiff had filed suit for recovery of Rs. 674. 15ps against the respondent/defendant, Sunil Dua. As there was deficiency in court fee the trial court by order dated 21st July 1986 directed the the plaintiff to make up deficiency and the suit was adjourned to 8th August 1986. The deficiency was made up and the trial Court by the order dated 8th August 1986 directed that summons be issued to the defendant for 21st October 1986. The petitioner says that process-fee was filed Along with the plaint but there appears to be some confusion about the same. By order dated 21st October 1986 the plaintiff was again directed to file process fee and it was directed that summons be issued to the defendant for 12th December 1986. The process fee was not filed with the result that the suit was dismissed for non-prosecution on 12th December 1986.
(3) The trial Court is not right in observing that the plaintiff did not file process fee for hearing fixed for 8th August 1986. Even if it is assumed that there was some confusion about the filing of the process fee Along with the plaint, then too there was no requirement for filing any process fee for 8th August 1986. The case had been adjourned to 8th August 1986 only for making up the deficiency in court fee which admittedly was made up. For the first time on 8th August 1986 the trial Court directed that summons be issued to defendant for 21st October 1986. In case the process fee had been filed Along with the plaint, the summons should have been issued for 21st October 1986. In that event there would be one default for non-filing of process fee in terms of order dated 21st October 1986. Assuming that process fee was not filed Along with the plaint, then there will be two defaults one for not filing process fee for issue of summons for 21st October 1986 and, second, for 12th December 1986. Thus, there was either one default or at best two defaults in payment of process fee by the plaintiff.
(4) There is no doubt about the power of the court to make an order dismissing a suit on failure of the plaintiff to pay the process fee for service of summons on the defendants. There is also no doubt that in number of case the litigants or their agents and in some cases, the advocates, are persistently negligent in prosecuting the suits and in complying with the directions of the Courts. They fail to pay process fee inspite of numerous opportunities. In such cases the courts have no option but to have resort to Order 9 Rule 2 Civil Procedure Code and make an order dismissing the suit. However, I would like to add a note of caution. The jurisdiction under Order 9 Rule 2, Civil Procedure Code ., ordering dismissal of a suit should not be exercised casually or in routine but only in cases where Court finds persistent or gross negligence The jurisdiction to dismiss a suit under Order 9 Rule 2, Civil Procedure Code . must always be exercised cautiously, wisely and with circumspection.
(5) The present case, however, does not fall in the category of cases where it can be said that the petitioner was persistently negligent. Clearly there was one default but assuming there were two defaults, then also. in the facts and circumstances of the case, the learned trial court ought to have acceded to the prayer made by the learned counsel for the petitioner and granted one more opportunity to pay process fee and serve the defendant. In the facts and circumstances of the case, the learned trial Court by dismissing the suit for non-prosecution on 12th December 1986 and by dismissing the application under Order 9, Rule 4 of the Code of Civil Procedure by order dated 15th January 1987 has acted illegally in the exercise of its jurisdiction and if the orders are not set aside, it would occasion a failure of justice to the petitioner.
(6) Accordingly, I set aside orders dated 12th December 1986 and 15th January 1987 and direct the trial court to afford another opportunity to the petitioner to file process fee etc. and serve the defendant. The petitioner/plaintiff is directed to appear before the trial Court on 11th July 1988. The trial Court record be sent back forthwith.
(7) The revision petition is allowed. There will be no order as to costs. Revision petition allowed. to inference that he is absconding and has no intention to come to India. Hence I find no merit in this petition which I, hereby dismiss.