Abdeally Sk. Shamsuddin vs M/s. J.S. Mohammedally and Others

Kalyan Jyoti Sengupta, J.—The Court: Both the applications are heard together as the point involved in both the matters are same. The first mentioned application has been taken out by the Defendant No. 2 for dismissal of the suit and/or taking the plaint off the file and also for other incidental relief whilst the second application has been taken out for condonation of delay; order dated 19th August, 2005 be suitably modified and/or vacated and time to issue the writ of summons be extender accordingly.

In 1999 the Plaintiff filed application praying leave under Order 2 Rule 2 of Code of Civil Procedure; a decree for mandatory injunction directing the Respondents and each of them to furnish all the documents and information, which the Plaintiff has sought for from them in the letter dated 23rd November, 1998; a decree for permanent injunction restraining the Defendants and each of them and/or then partners of the Defendant No. 1 and/or agents and/or assigns from disposing of and/or encumbering and/or transferring any properties of the Defendant No. 1, in which the late father of the Plaintiff has 1/5th share and also for partition of the assets and properties of the parties In the said suit various interlocutory orders were passed. It is said that the orders were violated by the Defendant No. 2, so contempt proceedings was initiated and the Defendant No. 2 was convicted and awarded punishment. The Defendant No. 2 has preferred appeal against the order of punishment and the same is pending. This had happened after institution of the still till 2004. After the aforesaid application has been taken out by the second Defendant for the above relief on the ground that since the institution of the suit no step has been taken for progress of the same and the Plaintiff had not shown any interest in continuing with the suit, even till the date of filing of the application no writ of summons has been taken out for lodging with the Sheriff on behalf of the Plaintiff for the purpose of issuance or service upon the Defendants.

In the affidavit-in-opposition the Plaintiff answered that it no point of time the Defendants, while contesting the application for amendment of the plaint waived service of writ of summons and therefore, the allegations of inaction on the part of the Plaintiff does not and cannot arise, on the contrary, the Defendants did not file (sic) written statement. On 19th August, 2005, The Hon''ble Judge Soumitra Sen passed an interim order directing that the time to as a writ of summons shall not be extended by the Master in the meantime On 21st December, 2005 the matter was heard and new point was taken that there has been no presentation of the plaint in true sense nor the suit has been filed in the register, as such there has been no institution of the suit. In view of this stand taken, by order dated 21st December, 2005 I allowed supplementary affidavit to be filed by the second Defendant and also allowed the Plaintiff to file affidavit of rejoinder to the supplementary affidavit. In view of the contention and rival contention I called for a report of the Senior Master as to whether the aforesaid suit has been registered in the suit register or not. The learned Senior Master submitted a report to the effect that the plaint was not-presented either before Court or before the learned Master. It was not entered into the suit register, however, it was filed in the Central Filing Section and the number of the suit has been given being C.S. No. 186 of 1999. His report is that the plaint is kept as an unadmitted one because of the fact that there is no endorsement on the fiat of admission of the plaint on the back sheet of the plaint.

I have examined the plaint and have found that the report given by the learned Master is factually correct.

On the factual background as above, Mr. Panja, learned Senior Counsel, contends that under the provisions of Order 4 Rule 1 of the CPC the suit has to be filed by presenting a plain to the proper officer of the Court. The proper officer of the Court has been mentioned in Chapter VIA Rule 1 and 2 of the Original Side Rules. According to him, filing of the plaint in the Central Filing section is not good enough and it must be presented either before the Court or before the officer prescribed by the Rules for admission and thereafter registration in the suit register, then it can be called that the suit has been duly instituted.

He further submits that there has been no verification in the plaint nor there is any date having been mentioned as to when cause of action has accrued in this matter. The compliance of the provision for verification is mandatory. Therefore, in the eye of law, there is no suit, as such the same should be dismissed and all interim orders should be vacated.

After seven years the Plaintiff cannot ask for issuance of summons, as relief claimed in the plaint is barred under the provision of Limitation Act, even assuming the suit is filed lawfully. The relief prayed for by the Defendant has to be governed by the provision of Article 137 of the Limitation Act, 1963. In support of his submission he he relied on a Supreme Court decision reported The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, a decision of this High Court reported in 1988(1) CLJ 479. On the ground of non-service of writ of summons the suit must be dismissed and this Court has judicially pronounced to this effect also. In this connection a judgment of this Court reported in 1994(2) CHN 161 may be relief on. The application of the Plaintiff must be governed under the provision of Section 151 of the Code of Civil Procedure. So, Article 13 of the Limitation Act will be applicable. In support of his contend it he has drawn attention of the Court to the fallowing decisions of this High Court, Madras High Court and Hyderabad High Court reported in Gopal Laskar Vs. Harihar Mukherjee and Others, and AIR 1956 Hyd 13 respectively. It is pertinent to mention that in February, 2000 application for amendment was allowed by this Court and the same has not been carried out till today. Therefore, effect of not carrying out the amendment is that the Plaintiff is debarred from carrying out such amendment.

Mr. Subrata Mukherjee with Mr. Dhruba Ghosh, learned Advocates, appearing for the Plaintiff contends that the application taken out by the Plaintiff is not only misconceived but mischievous too as the Defendants contested the interlocutory proceedings and never raised this point. The interlocutory order passed by this Court was violated and the Defendant No. 2 was punished and the appeal been preferred against the same. Not being successful to justify the Contumacious act the present application has been taken out. On 17th February, 2005 when the application for amendment was allowed has been recorded that Defendant Nos. 1, 2 and 3 waived the service of writ of summons and the Defendants were directed to file their written statement. At that point of time the Advocate-on-record for the Defendant Nos. 1, 2 and 3 was one Mr. Bimalendu Das and the learned Counsel appearing for the said Defendants was Mr. Surojit Nath Mitra Having waived service of the writ of summons, the question of Defendants now applying for dismissal of the suit on the ground of no service of summons does not and cannot arise.

In any view of the matter going by the report of the Senior Master it appears that service of writ of summons has now become arcade as the defects have been found in the plaint and the plaint has been formally registered in the suit register. The plaint was no scrutinized and it was lying in the Court. It is borne out by the rep and records that the plaint was filed in the Central Filing Section an if was accepted by the department by marking as C.S. No. 186 of 1999 He further contends that under the provision of Chapter XXIX-A of the Original Side Rules after plaint is presented in the Central Filings section it is the officers of the said department who are to passing successively to the various sections and departments for examination securitization and thereafter for presentation before the appropriate officer. It is the failure of the department not the Plaintiff who is the layman for not doing so in terms of the provision of the said Rules and this legal procedure been followed by the departmental officers then the plaint would have been scrutinized and the learned Advocate on record of the Plaintiff consequently would have got a change or opportunity to rectify the defects in the plaint. According to Mr Mukherjee, it is his fault, as he did not mention relevant paragraph in the portion of the verification, though the Plaintiff has put his signature at the verification portion. It is the job of the learned draftsman viz. the learned Advocate not of the Plaintiff. Sum and substance of his argument is that the entire fault is on the part of the officials of the department of the Court as well as the learned Advocate on-record himself. He made statement in the Court that it is his fault, as such on account of his failure his client should not be penalized.

As far as question of limitation is concerned he contends that the proposition of the law pronounced by the Court in the aforesaid number of decisions is not disputed. In this case, the aforesaid mistake regarding non-verification and non-registration of the plaint has been detected recently from the report of the learned Master. Therefore, the application has been made perfectly within the period of limitation as pronounced by the Supreme Court as well as all the High Courts as contended by Mr. Panja. On the contrary, in support of his submission he has sought reliance on the judgment of this Court reported in AIR 1986 CAL 208. When service of writ of summons was waived by the learned Lawyers for the Defendants question of taking out the writ of summons or service of the same does not and cannot arise. If the Defendants and each of them want service of writ of summons then time may be granted for lodging the writ of summons for service thereof and a chance be given to the Plaintiff to rectify the defects.

Having heard the respective contentions of the learned Counsel in this case it appears to me that at one stage the issue was as to whether the Plaintiff had failed to take steps for hearing of the suit by lodging writ of summons and serving it upon the Defendants or not and on that score whether the suit was liable to be dismissed or not. The judgment of the Hon''ble Justice Ajoy Nath Ray (as His Lordship then was) in case of State Bank of India v. Tarit Appliances (P) Ltd. and Ors. held that the suit may be dismissed in accordance with the provisions of Rule 5 of Order 9 of the CPC and Rules 6, 7 and 8 of the Original Side Rules of the High Court unless service of writ of summons is waived by the Defendants. In this case, the aforesaid judgment has no application factually as the Defendants and each of them, as it appears from the order of the Court, waived the sendee of writ of summons. When this fact was confronted with the Defendants new point was taken that there has been no institution in the eye of law. Accordingly, issue of inaction on account of non-service of writ of summons is absolutely non-issue now in either way. Therefore, I do not find any reason to decide the issue.

Next question is as to whether the suit has been liled in accordance with law or not. On 11th September, 1996 the Original Side Rules were amended by incorporating a Chapter XXXIX-A. Under the Rules 2, 3, 4, 5, 6 of this chapter various methodology have been provide for filing the pleadings of all kinds and all papers in the Central (sic) Section. Before this chapter was introduced plaint was required was presented either before the Court when leave under provision of various laws was required to be obtained before the Court assumes jurisdiction or in case of urgency viz. the point of limitation being involved the plaint was to be presented before the Court or in ordinary circumstances before the learned Master. Thereafter the plaint was to be scrutinized by the officials of this Court and if any defect was to be found then opportunity was given to rectify that defect. Now with the introduction of the aforesaid chapter by virtue of Rule 6 then the methodology has been provided as follows:

Upon the presentation of a plaint, petition, memorandum appeal or application at the centralized filing counter a number who be granted to the presenter, thereafter the same shall (sic) successively through through the caveat counter, filing counter scrutiny counter and ledgering counter of the centralized u/s of the Original Side as applicable for verification and checking.

Therefore, it is clear that it is the departmental function check and scrutinize and it is not the party concerned to take any steo.

From the record it appears in this case, that it was present in the Centralized Filing Section and a number was given. It is mystery how without the same being checked and scrutinized the plaint could remain in the Court. It was possible because on requisition of the Plaintiff it might have been brought before the Court for obtaining leave under Order 2 Rule 2 of the Code of Civil Procedure. There is no evidence that such leave was prayed for or granted.

In my view if the aforesaid procedure were followed in this (sic) the defect of the plaint could have been detected. It appears from the original plaint that there has been no verification although the Plaintiff has signed at the bottom of the verification portion. There has no mentioning of the date when cause of action has arisen in this I do not find any writ of summons having been accompanied with plaint. Under the provisions of the Rule of this Court read with (sic) of CPC the requirements are mandatory. If there is no verification as required under Order 6 Rule 15 of Code of Civil Procedure, and further the particulars as required to be given in the plaint do not find place no plaint can be admitted and naturally the same can not registered in the suit register. Consequently, there is no insti(sic) of the suit in the eye of law, as rightly contended by Mr. Panja.

It is true that the plaint has been filed in the Central(sic) section meaning thereby it has been brought in the records of the but the suit has neither been registered nor instituted as on to the rightly contended by Mr. Panja. But question is whether the suit be dismissed on the above ground or deemed to have been nones factum? In my view the answer would be in the negative.

In a situation like this, the procedure which is to be followed in that when it is detected that there is serious mistake this must be placed before the Senior Master for scrutiny which should have been done fas I have already indicated and upon scrutiny an opportunity should be given to the Plaintiff for rectification of the defects. If the defects are not rectified within the time then obviously the plaint should be returned. As far as the question of limitation is concerned, according to me, the provision of Article 137 would be applicable without any doubt as correctly pointed out by Mr. Panja but this defect has been discovered recently in 2005 as pointed out by Mr. Mukherjee Therefore, the application has already been made by the Plaintiff for lodging of writ of summons but this prayer cannot be considered at this stage unless took defect is rectified.

Almost similar problem in different way cropped up in one case and the Division Bench of this Court in this case of Kalyan Kumar Basak Vs. Salil Kumar Basak and Others, had to solve the problem. In that case no step as required under the Rules was taken for taking out notice of appeal and also for filing of paper book within the time. In case of inaction it is observed therein that step should be taken as provided in Rule 22 and Rule 8 of Chapter XXXI of the Original Side Rules. In those Rules it has been provided that in case of failure the matter has to be disposed of. It is interpreted the word "disposal'' mentioned in Rule 35 of Chapter X of the Original Side Rules, does not mean dismissal. Chapter X Rule 35 has elaborately laid down the procedure of what has to be done in case of want of prosecution. In paragraph 24 of the said judgment it is ruled that Rule 35 of Chapter X of the said Rule empowers the Judge to dismiss the suit for default unless good cause is shown to the contrary or to otherwise deal with the matter as the Judge may think proper. The marginal note of the above Rule is: "disposal of suits for want, of prosecution". Marginal note makes it clear that disposal does not mean only dismissal. Therefore, it is clear from the aforesaid judgment that if good cause is shown and Court is satisfied that in a fit case the suit may not be dismissed.

In that case cited above it was found factually that it was complete and absolute fault of the Advocate-on-record of the litigant who did not take any step for taking out notice of appeal and filing paper book within the time. Being satisfied with the case the Court condoned delay upon payment of costs.

In this case it is apparent, and for which no supporting affidavit is required, the learned Advocate-on-record himself argued the matter before me and he categorically stated that it is his fault for not mentioning the paragraphs in the verification portion and further not inserting the date of accrual of cause of action in the plaint. The litigant''s obligation was to engage a lawyer to make payment of cost and charges for drafting, preparation and filing of the suit. There is no complaint that the litigant has not discharged his obligation in the matter, rather his Advocate-on-record and/or learned draftsman categorical and candid to admit his fault in doing the fundamental things and failing to take steps for proceeding with the suit. Office of the department are also equally liable for these lapses for had the followed the amended provision of Order XXIX-A this defect could have been at least detected earlier, and the Plaintiff would have got the chance to rectify the same.

Under those circumstances, I do not think that the plaint case be returned. As there is no registration of the suit question on dismissal of the same does not arise. The officer of the Court is now directed to send this plaint to the learned Senior Master who show cause all scrutiny to be done thereupon the defects are to be identified and the same shall be notified to the Advocate-on-record of the Plaintiff In the event all the defects are cured within the time as may be stipulated by the learned Senior Master then it should be registered and regularized.

It has been rightly contended by Mr. Panja that interim (sic) was passed by this Court on a matter which has not been registered at all. Therefore, interim order which is in operation in this matter will stand vacated. I make it clear the earlier effect of the interim order without knowing the aforesaid defects will not be nullified. Naturally contempt proceedings which has been initiated will not have and impact on it. The Defendants could have also detected this mistake and defect since they had also opportunity to do the same. The Defendants also are not vigilant and they, bona fide, believed that the suit had been lawfully instituted and congested the proceeding of Therefore, they are estopped from challenging the legality and valid of earlier effect of the interim order. It is not a case of inheres incurable defect for which order passed in this matter earlier would be declared to be null and void or void ab initio. Order passed-by Court acted upon by the parties in bona fide belief that the litigating has been filed lawfully, cannot be held to be invalid unless it appear to be inherently and incurably defective.

After defect is removed and suit is registered it shall be open for the Plaintiff to take out fresh application for interim relief, it so advised. Both the applications are disposed of by the aforesaid conviction order, however, the Plaintiff shall pay costs assessed at 100C. the Defendants.

After the judgment is delivered the learned Counsel(sic) Defendant prays for stay of operation of this order. I do not(sic) reason to grant any stay since I have vacated all the interiam(sic) already passed. In particular, until and unless the defect is(sic) there is no lis in the eye of law. All the records and papers he sent down to the department as early as possible. Department and all parties concerned are to act on a signed copy of the operative portion of this judgment and order.