S.J.MUKHOPADHAYA, J.
This appeal has been preferred by the appellant, M/s.Apollo Tyres Ltd., who is the 1st defendant in the suit, against order dated 12th June, 2007, passed by learned Judge in Application No.2309/06 in C.S. No.1226/93.
The appellant/1st defendant preferred an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure to dismiss the suit for non-prosecution, but learned Judge rejected such application.
2. The suit was preferred by the respondent, M/s.Transport Corporation of India, Madras, for a decree against the 1st defendant to pay the plaintiff a sum of Rs.44,38.576/= with interest at the rate of 12% p.a., registered as C.S. No.1226/93 in the Original Side of this Court. Judges summons were sent and number of times returned and having ultimately served on the 1st defendant in 2006 and on appearance, the 1st defendant filed the aforesaid application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure to dismiss the suit for non-prosecution.
3. Counsel appearing on behalf of the appellant submitted that the suit was filed on 23rd July, 1993, specifically showing the address of the 1st defendant as that of registered office, but the respondent/plaintiff failed to take summons to the registered office inspite of the fact that the process server returned the summons on number of occasions stating that the 1st defendant could not be found at the address given in the summons, as the 1st defendant has vacated. In fact, no step was taken for about 13 years. As there is inordinate, inexplicable and inexcusable delay of 13 years in prosecuting the suit diligently and grave injustice and prejudice have been caused to the 1st defendant, the suit should have been dismissed for non-prosecution.
Learned counsel referred to the factual aspect to suggest the manner in which the plaintiff tried to drag the matter. It was submitted by learned counsel for the appellant that the plaintiff, while clearly mentioned that the registered office of the 1st defendant is at 6th Floor, Shanmugam road, Cochin, Kerala 682032, as also at No.45, Giri Road, .Madras-17, from the perusal of the Court record it will be evident that the summons were sent to its address at No.45, Giri Road, Madras-17 only. The first summons was returned unserved on 18th Nov., 1994, followed by another summons, which were also returned unserved on 23rd Jan., 1996, 16th July, 1996 and 11th Dec., 1996. It was contended that all the time though the summons were returned with note that the defendant had left the address, but, repeatedly, summons were sent to the said address. After December, 1996, after about ten years, no step was taken till 13th Feb., 2006, when counsel for the plaintiff sought permission for private notice for service on the 1st defendant, which was ultimately served.
4. The grievance as made on behalf of the appellant is that because of the callous attitude on the part of the plaintiff, who tried to delay and drag the matter, now the 1st defendant will not be in a position to trace the documentary evidence and may be in a disadvantageous position to produce its witnesses, many of the employees as may have left the company in the meantime, who had knowledge of occurrence of fire as took place in 1993. It was further submitted that the 1st defendant being a company could get the details of the facts and information with regard to incident alleged to have taken place in 1993 only through its employees posted at Madras, many of whom may have left by this time. If the summons would have been served as back as in 1993-94, according to counsel, the appellant could have atleast kept track of the employees, who were posted on the relevant date at Chennai.
5. Learned counsel appearing on behalf of the respondent/plaintiff submitted that no case is made out to dismiss the suit under Order VII Rule 11 or Section 151 of the Code of Civil Procedure. In fact, none of the clause of Order VII rule 11 could be invoked in the present case.
On the other hand, according to counsel for the appellant, if power is not there under Order VII rule 11, the Court has inherent jurisdiction u/s 151 of the Code of Civil Procedure to notice the delaying attitude of the plaintiff and to dismiss the suit for non-prosecution. Reliance was placed on Supreme Court decision in Shipping Corporation of India Ltd. - Vs Machado Brothers reported in AIR 2004 SC 2093, wherein Supreme Court explained the inherent power of the Court u/s 151 of the Code of Civil Procedure.
6. We have heard the parties, noticed the record and the judgments as referred to by the counsel for the parties.
7. Order VII Rule 11 empowers the Court to reject a plaint under the following circumstances :-
"11. Rejection of plaint.- The plaint shall be rejected in the following cases :-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court,f or reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
The present suit of the respondent being not covered by any of the clause of Order VII Rule 11 of the Code of Civil Procedure, there was no occasion for learned Judge to dismiss the plaint.
8. So far as the inherent power of Court u/s 151 of the Code of Civil Procedure is concerned, in the case of Shipping Corporation of India Ltd. (supra), the Supreme Court made the following observation :-
"20. From the above, it is clear that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the Courts have all the necessary powers under Section 161, CPC to make a suitable order to prevent the abuse of the process of Court. Therefore, the Court exercising the power under Section 151, CPC first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application."
9. In the present case, though there is no express prohibition by any other provisions of the Act to dismiss the suit for non-prosecution, but the question raise is whether such power should have been exercised or not on the basis of the facts of the case.
10. It is true that the summons were issued three times between 1994 and 1996, but when the fourth time the summons returned unserved, it appears that the matter was never placed before the Court immediately. It is not the case of the appellant/respondent that the case was listed after 11th Dec., 1996 and before January, 2006 and the report of the process server was brought to the notice of the plaintiff or its counsel and inspite of the same, no steps were taken for fresh summons on the 1st defendant. If about ten years have passed and due to the work load of the Court the case was not taken up by the court, as it appears from record, the plaintiff cannot be held guilty nor can suffer for the same. In this background, if learned Judge refused to entertain the application as was preferred by the 1st defendant, no interference is called for with such order.
11. There being no merit, the appeal is dismissed. Consequently, connected miscellaneous petition is also dismissed. But there shall be no order as to costs.