Edward Food Research and Analysis Centre Limited vs Saroj Kumar Banerjee and Others

Harish Tandon, J—This revisional application is directed against order No. 88 dated 21st July, 2015 passed by the learned Judge, Small Causes Court at Sealdah in Title Suit No. 57 of 2014, by which an application under Order IX Rule 5 of the Code of Civil Procedure praying for dismissal of the suit is rejected.

Admittedly, the aforesaid suit was instituted in the year 2000 for the relief in the form of declaration that the plaintiffs/opposite parties have undivided half share in the suit property with further declaration that the purported deed of conveyance executed between the defendant Nos. 1, 2 and 3 on 9th November, 1992 is illegal, invalid and void having obtained by fraud.

In the said suit, an application for injunction was taken out by the plaintiffs/opposite parties and by order No. 12 dated 15th July, 2003, the Trial Court passed an ex parte ad interim order of injunction restraining the parties from selling, transferring, mortgaging, leasing out and/or parting with the possession of the suit property until further order.

The defendant No. 1 appeared and showed his intention to contest the suit as well as the injunction application.

By order No. 14 dated 5th September, 2003, the Court recorded the satisfaction of the service upon the defendant Nos. 1 and 2 and directed fresh service to be effected upon the defendant No. 3. By order No. 22 dated 15th September, 2004, the Court recorded the satisfaction of service upon the defendant No. 3, who is the petitioner in this revisional application, and directed the suit to be proceeded ex parte against him.

Subsequently, the defendant No. 1 died and an application for substitution of the heirs was taken out by the plaintiffs/opposite parties, which was eventually allowed. The Court directed to effect service of summons upon the substituted defendants and there is no quarrel that the said substituted defendants have not come up raising any objection either for non-service of summons or the irregular service of summons.

Amidst the pendency of the suit, an application for amendment of the plaint was taken out, which was allowed ex parte by the Court. The Court again directed the plaintiffs/opposite parties to file the amended plaint and the requisites.

It further appears that an application under Order XXXIX Rule 2A of the Code was taken out by the plaintiffs/opposite parties, which gave rise to the registration of Miscellaneous Case No. 59 of 2014.

The petitioner appeared after service of the suit and after perusing the orders passed in the suit felt that the suit is liable to be dismissed against him for non-compliance of the provisions contained under Order IX Rule 5 of the Code. According to the petitioner, there was no satisfaction of service of summons and the plaintiffs failed to file fresh requisites within the statutory period provided therein. The Trial Court rejected the said application holding that there is no occasion to dismiss the suit against the petitioner in view of the order No. 22 dated 15th September, 2004 and order Nos. 74 and 75 recorded in the order sheets.

Mr. Abhrajit Mitra, learned senior advocate appearing on behalf of the petitioner, vehemently submits that the plaintiffs gave a wrong address in the cause title of the plaint and, therefore, the acceptance of service of summons by the Court is improper and the petitioner should be treated to have been unserved. He further submits that the petitioner left the premises mentioned in the cause title of the plaint much before and the plaintiffs were aware of the said fact, which could be deciphered from the address incorporated in the application under Order XXXIX Rule 2A of the Code. According to Mr. Mitra, if the plaintiffs omit to take steps for fresh service of summons, the Court cannot ipso facto extend the time without recording satisfaction on due diligence. In support of his contention, he relies upon a Division Bench judgment of this Court in case of Shrikant Mantri and Others Vs. Radheshyam Chotia and Others, (2006) 3 CALLT 230 and a judgment of the Co-ordinate Bench of this Court in case of NPR Finance Limited Vs. Deepak Jhunjhunwala, 114 CWN 593 . He strenuously submits that omission to take steps under Order IX Rule 5 of the Code when admittedly service of summons is not effected upon the defendant attracts the penal consequences in the form of dismissal of the suit.

Before proceeding to address the issues raised by Mr. Mitra, this Court feels that the ratios laid down in the above noted reports are required to be culled out.

In case of Shrikant Mantri (supra), the suit was filed under Section 92 of the Code and a leave was sought under Order I Rule 8 of the Code. An interlocutory application for injunction was filed therein and it appears that those were pending at a relevant point of time when the defendants moved an application for taking the plaint off the file after revoking the leave granted under Section 92 and Order I Rule 8 of the Code. Subsequently, an application was filed in the year 2005 and it appears that till that time the writ of summons was not lodged with the Sheriff. The fact remains that the summons was unserved for a period of six years or so and there was no explanation offered by the plaintiff as to why the notice of motion in terms of the leave so granted could not be taken out within the stipulated time. It was sought to be contended that the defendants were all along aware of the institution of the suit and, therefore, the suit should not be dismissed for non-taking out the writ of summons in the suit. In the backdrop of the aforesaid factual scenario, the Division Bench held:

"Considering the facts of the instant case we cannot accept the case made out by the plaintiffs/respondents in their application for extension of the returnable date of the writ of summons. It cannot be said from a perusal of the said order dated 12.07.1999 passed by the Hon''ble single Judge that the plaintiffs/respondents were estopped from taking further steps in the suit like taking steps for issuance and service of writ of summons upon the defendants. In our view, the filing of the application for amendment of the plaint, which according to the plaintiffs was done after the said order dated 12th July, 1999 was passed, cannot be a ground for preventing the plaintiffs from taking steps for issuance and service of the writ of summons in accordance with relevant Rules. The plaintiffs/respondents'' case that they intended to have the plaint in the suit amended and the summons taken out for the amended plaint and thereafter have it served upon the defendants is not an acceptable argument. Such argument, if accepted, would render the Rules meaningless. We are also not satisfied with the plaintiffs/respondents'' case of being under bonafide impression and genuine belief that the service of the writ of summons upon the defendants prior to disposal of the defendants'' demurer application and prior to the hearing of the amendment application filed by the plaintiffs/respondents will serve no useful purpose. After having tried to make out such case it cannot be appreciated how the plaintiffs/respondents can shift the blame upon his learned advocate-on-record for not taking proper steps in due time, since the plaintiffs have themselves stated that no useful purpose would have been served if the writ of summons was served prior to the disposal of the defendants'' demurer application and prior to the hearing of the amendment application. If this be the ground for the belief of the plaintiffs/respondents can thereafter fix the responsibility entirely upon their learned advocate-on-record. Thus, considering the facts and circumstances of his case and the decisions which were cited at the Bar, as discussed above, we are of the view that the Hon''ble First Court was not right in dismissing the defendants/appellants'' application being G.A. No. 61 of 2005. In our view, the suit ought to be dismissed for non-service of writ of Even though it has been stated by the defendants/appellants in their application for any stay that the writ of summons was served on the defendants/appellants on July 8, 2005, it is of no consequence, since the plaintiffs/respondents failed to take proper steps within the time prescribed by law and the plaintiffs have failed to give proper and cogent reason for their failure. Thus, the defendants'' application for dismissal of the suit being G.A. No. 61 of 2005 stands allowed and consequently, the plaintiffs'' application being G.A. No. 1286 of 2005 for extension of the returnable date of the writ of summons is dismissed. Thus the Order dated 20th June, 2005 passed by the Hon''ble First Court which is under challenge in this appeal is set aside and the A.P.O. No. 458 of 2005 is allowed."

In case of NPR Finance Limited (supra), what can be seen from the facts recorded therein that the plaintiffs did not take any steps after the writ of summons returned ''unserved'' within the time indicated in the relevant provisions. Subsequently, the Master extended the time without recording any reasons and after the service having effected upon the defendants, an application was taken out for dismissal of the suit under Order IX Rule 5 of the Code and under the Original Side Rules of this High Court. In paragraph 23 of the said report, the Court noticed the judgment rendered in case of Luxmi Trading Vs. Shriram Govindnarain, 61 CWN 212 : (1957) 2 ILR (Cal) 877 , wherein it is held that if the plaintiff fails to apply for issue of fresh summons within the time indicated under Order IX Rule 5 of the Code, it attracts the penal consequences of dismissal of the suit and the time should not be extended in mechanical manner. It is further held by the Co-ordinate Bench that omission to take steps for fresh service of summons accrues valuable right to the defendant to apply for dismissal of the suit, which cannot be undone by the ipse dixit of an unreasoned order.

There are no quarrels on the aforesaid provisions of law laid down in the above noted reports. It is obligatory on the part of the plaintiffs to apply for fresh service of summons if the summons returned ''unserved'' and any failure or omission may attract the consequences provided therefor. The ratio of a decision is what it decides in a particular fact of the case and should not be applied in an abstract manner when the case stands on a different factual matrix.

In the instant case, immediately upon presentation of the plaint, the requisites, meaning thereby the writ of summons, were deposited and/or filed with the Trial Court for effecting the service on the defendants. Even after allowing an application for amendment ex parte by order No. 10, the Court directed the plaintiffs to file the amended plaint and to file fresh requisites so that the writ of summons containing the amended plaint may be served on the defendants. The order No. 11 dated 24th June, 2003, reveals that the plaintiffs filed the amended plaint as well as the requisites for effecting the service upon the defendants.

In subsequent orders, the Court recorded the service of summons on the defendant Nos. 1 and 2 and fixed the date for service returned so far as the defendant No. 3, the petitioner herein, is concerned. By order No. 22 dated 15th September, 2004, the Court after recording satisfaction on due service accepted the service of summons and directed the suit to proceed ex parte against the defendant No. 3.

Necessity to comply Order IX Rule 5 of the Code would only arise when summons came back ''unserved'' and not when the Court recorded the satisfaction or declared the summons to have been served on the defendants. There was no occasion on the part of the plaintiffs to take recourse to Order IX Rule 5 of the Code after the order No. 22 dated 15th September, 2004, when the Court declares the service of summons upon the defendant No. 3. It is now contended on the part of the defendant No. 3/petitioner that the said service appears to have been effected at the wrong address when admittedly the petitioner shifted to a new place, which was within the knowledge of the plaintiffs and, therefore, the recording made by the Court is contrary to record.

There is a distinction between the service not effected upon the defendants and the service irregularly effected upon the defendants. Order IX Rule 5 of the Code conceive of the situation when the summons returned ''unserved'', but does not imbibe within itself the eventuality when the service has been effected improperly and/or irregularly. If the Court wrongly recorded the declaration as to the service of summons upon the defendants, it does not automatically attract the penal consequences to be suffered by the plaintiffs in pointing out that the writ of summons was sent to a wrong address.

The act of the Court shall not prejudice any litigant. Till date, the order No. 22 dated 15th September, 2004 finds place in the record and, therefore, binds the parties therein. It would be altogether different when the Court either recall the said order to have been passed erroneously or is set aside by the Higher Forum.

Even if this Court accept the submission of the petitioner that, in fact, there was no service of summons upon him, the plaintiffs cannot be penalized if the Court erroneously and/or improperly recorded the declaration of service of summons.

The reference can further be made to order No. 74 dated 17th December, 2014, where the notice was further served on transfer of the suit by an administrative order of the learned District Judge, wherein the Court recorded the service to have been effected upon the defendant No. 3 by declaring the service as proper.

This Court, therefore, cannot accept the submission of Mr. Mitra that because of the improper and/or erroneous declaration of the Court, the suit is liable to be dismissed against the petitioner for not taking steps under Order IX Rule 5 of the Code.

Furthermore, the petitioner has appeared in the suit and this Court is informed that a written statement has already been filed by him, this Court, therefore, does not find that any valuable right, in fact, accrues in favour of the petitioner for dismissal of the suit under Order IX Rule 5 of the Code.

The Trial Court, therefore, has not acted illegally in rejecting the application filed by the petitioner under Order IX Rule 5 of the Code.

The revisional application is, thus, dismissed.

There shall, however, be no order as to costs.