Luxmi Trading vs Shriram Govindnarain

Chakravartti, C.J.—This is an appeal by the Plaintiff in a suit brought on the Original Side of this Court against an order of P.B. Mukharji J., whereby the learned Judge refused to interfere with an order made by the Master to the effect that he was unable to make any order on the application made by the Appellant before him. The question involved in the appeal turns upon the true construction of the provisions of Rule 5 of 0rder IX of the Code of Civil Procedure.

The suit was instituted on June 25, 1953, for the recovery of a sum of Rs. 11,143-8-0 from a firm, called Shriram Gobindnarain, alleged to be the principal of the Plaintiff. The money was claimed by way of indemnity for some liability incurred by the Plaintiff on account of the Defendant.

On the very day the suit was filed, the Plaintiff moved an application before the Master for leave to serve the Writ of. Summons on the Defendant by serving it on one Tarachand Agarwala, said to be the manager of the Defendant firm or the person in actual control of it. The order prayed for was immediately made. The Writ of Summons was issued on July 3, 1953, and it was lodged with the Sheriff on July 7 following. Then, it is said, commenced a chapter of events which, to say the least, are not very credible. It is alleged that in the first week of July, 1953. one Madanchand Surana, a partner of the Appellant firm, paid a visit to Tarachand Agarwala, informed him of the institution of the suit and and made a request that the matter should be settled and the amount claimed paid off amicably. Tarachand Agrawala is said to have asked the Appellant not to incur any further expenses or take any further steps and to have assured him that he would open negotiations with the partners of the Defendant firm who were residing at Hyderabad. Further negotiations are alleged to have gone on and they proceeded, according to the Appellant, up to the middle of April, 1954. It is not necessary to set out the details of the various representations said to have been made by Tarachand Agarwala at various times. About the middle of April, Madanchand is said to have called again at 24 Burtolla Street, which used to be the Calcutta office of the firm, and found that Tarachand was then living there with his family. During that visit, Tarachand is said to have told Madanchand finally that he could not help him, as the partners of the Defendant firm had not remitted any money to him and he is said also to have refused to disclose the address of the said partners. Thereafter, the Appellant is said to have given instructions to his solicitor to take the necessary steps for causing the Writ of Summons, to be served upon the Defendant firm.

In the meantime, however the Writ of Summons had been returned by the Sheriff, unserved. The returnable date was July 24, 1953, and the writ was returned on February 12, 1954, with the usual endorsement that no one on behalf of the Plaintiff attended at the Sheriff''s office to have the Writ of Summons served on the Defendant. As the Appellant is said to have become desirous of proceeding with the suit and having the writ served after the refusal of Tarachand Agarwala to help him further, he caused an application to be prepared for the issue of a fresh summons and affirmed the same on May 14. 1954. The application, however, was not presented till May 17, next, when the period of three months prescribed by Rule 5 of 0rder IX had already expired. The learned Master disposed of the application by saying that as it had been presented after the expiry of the time limit of three months provided for in 0rder IX, Rule 5, the restrictive provisions of that rule were attracted and he could male no order on the application. The Appellant then presented the petition to P.B. Mukharji J., by way of an appeal from the order of the Master, but failed to obtain any relief. Thereafter, the present appeal was preferred.

There is no Respondent in this appeal. At any rate, no notice of appeal has been served on the Respondent named. Speaking for myself, I have grave doubts as to whether the appeal is properly constituted. Mr. Bhabra submitted that since in the suit itself no Writ of Summons had yet been served on the Defendant, he had not come into the picture at all and, therefore, any question arising before the Defendant was served, would be a question purely between the Appellants and the Court. Broadly stated, that proposition may be correct, but, at the same time, it cannot be overlooked that by reason of the expiry of three months from the date on which the Writ of Summons was returned unserved and the failure of the Appellant to make any application for the issue of fresh summons within that period, a valuable right had accrued in favour of the Defendant. It is not, therefore, very clear to me that the Appellant can have an order destructive of that right in the absence of the Defendant Respondent. Particularly do I feel that there is a difficulty in the Appellant''s way, inasmuch as the justification he is pleading for not taking any steps towards having service of the Writ of Summons effected or making any application for the issue of a fresh summons within the prescribed period, is some conduct ascribed by him to the Defendant. It seems to me to be plainly right that when a party is claiming some relief on the ground that his opponent behaved in a certain manner, no order ought to be made in favour of the applicant without giving an opportunity to the party against whom the allegation is made, to meet that allegation.

Be that as it may, the present appeal is bound to fail on a pure point of law. In order to explain what that point of law is, it is necessary only to recall that no application for the issue of a fresh summons was made within three months from the date when the Writ of Summons was returned unserved, nor was any application made within that period for an extension of time. The question is whether in those circumstances the Master was right in holding that he could not possibly make any order on the Appellant''s application and whether the learned Judge was right in upholding the Master.

Rule 5 of Order IX provides that where a summons has been returned unserved and the Plaintiff "fails, for a period of three "months from the date of the return to apply for the issue "of a fresh summons, the Court shall make an order that the suit "be dismissed as against such Defendant, unless the Plaintiff has "within the said period satisfied the Court" that the failure to serve the summons was due to one or another of certain specified grounds, "in which case the Court may extend the time for "making such application for such period as it thinks fit". I have quoted only the material parts of the rule. Mr. Bhabra contended that, under the provisions of the Rule, the Master would be well entitled to extend the period for the issue of a fresh summons, provided the grounds mentioned in the Rule were made out even though the application might not have been made within three months from the date of the return of the first summons.

I am unable to accept that contention. The Rule clearly contemplates that it the Plaintiff does not make an application for the issue of a fresh summons within three months from the date on which the first summons is returned unserved, nor satisfies the Court within that period that one of the specified reasons was responsible for his failure to serve the summons so far, the consequence which will follow is that the Court shall make an order that the suit be dismissed. It will be noticed that the rule uses the word "Court" both in the provision directing the dismissal of the suit and in the provision providing for making out satisfactory reasons for the failure to serve the summons within time. I have no doubt that where the Rule speaks of the Court making an order dismissing the suit, "the Court" contemplated can only be a Judge and cannot be the Master. The Master cannot dismiss a suit. Where, however, the Rule is speaking of "the Court" which may be satisfied that one or another of the specified reasons made it impossible for the Plaintiff to serve the summons within the usual time, the expression means or at least includes the Master. The scheme of the Rule seems to me to be this: Where the Writ of Summons first issued is returned unserved, the Plaintiff must make an application for the issue of a fresh summons within three months from the date on which the summons was so returned. If, however, he fails to make such application, he is given the right to make another application, also within the "said period", that is to say, three months, but that is to be an application for extending the time for making the other application, namely, the application for the issue of a fresh summons. If within such time the Plaintiff makes out to the satisfaction of the Court, that is to say the Master, that he failed to cause the summons to be served for a reason recognised by the Rule or that there is some other sufficient reason for which time ought to be extended, the Master may extend the time. But extend the time for what? The Rule says "extend the time for making such application", that is to say, for making an application for the issue of a fresh summons. I confess that the prescription of the same period for making an application for the issue of a fresh summons and for making out a sufficient reason for extending the time, might prima fame seem to create some difficulty, but a close examination will show that no difficulty really exists. The sufficient cause to be made out under the second part of the Rule is not cause for failure to make an application for the issue of a fresh summons, but cause for failure to discover the residence of the Defendant or some other reason for which service could not be effected. It is quite a workable construction of the Rule to hold that the Plaintiff will have to apply within three months from the date on which the summons was returned unserved either for the issue of fresh summons or for an extension of time to make the application for the issue of a fresh summons, if he needs an extension. It may be said that if he has to apply for an extension of time within the same three months, he might as well make an application at once for the issue of a fresh summons and it is not intelligible why, if some part of the three months is still left, as it must be if the application for the extension of time is to be made within three months, he should trouble to ask for an extension of time, instead of making the application for the issue of a fresh summons straightaway. The answer, I conceive, is that even when the period of three months is drawing to a close, the Plaintiff may not be in possession of the necessary particulars about the Defendant which will enable him to cause the summons to be served and, therefore, he may not yet be in a position to apply for the issue of a fresh summons.

It is clear from the terms of the Rule, to which I have just referred, that where the Plaintiff has not made an application for the issue of a fresh summons within three months, nor has made an application within that period for an extension of time, the Master can no longer entertain an application for such extension, far less an application for the issue of a fresh summons and that, in the situation which arises, the Court will be bound to make an order that the suit be dismissed. The learned Master, therefore, was entirely right in the present case in refusing to make any order on the Appellant''s application and the learned Judge''s order appealed from is also right.

For the reasons given above, this appeal is dismissed, but as there is no Respondent, there will be no order for costs.

Lahiri J.

I agree.