AI Structured Summary
Not yet generated for this judgment
Judgment
Nadira Patherya, J.—G.A. 2683 of 2007 has been filed for dismissal of C.S. 405 of 2001. G.A. 1975 of 2009 has been filed for setting aside the order dated 28th March, 2008 as modified by order dated 3rd July, 2009. Both the said applications have been filed by the defendants. G. A. 1634 of 2009 has been filed by the plaintiff for extending the returnable date for lodging the writ of summons.
Counsel for the defendants submits that C. S. 405 of 2001 was filed on 9th August, 2001. Till August, 2007 no step was taken by the plaintiff for service of the Writ of Summons. In fact, by an order dated 21st August, 2007 M. Sinha, J. directed the plaintiff to put the defendants on notice before filing any application and application filed before the Master for extending the time to lodge the writ of summons was not upon notice to the defendants. By order dated 28th March, 2008 the Master has extended the returnable date of the writ of summons which was modified by order dated 3rd July, 2009. Chapter VIII Rule 6 of the Original Side Rules of this High Court postulates delivery of writ of summons within 14 days from the filing of the plaint and in default, Rule 8 postulates extension of the returnable date or issuance of fresh summons. As in the instant case no step was taken to issue or deliver the writ of summons the question of extending the returnable date does not arise and a valuable right has accrued in favour of the defendants which warrants dismissal of C. S. 405 of 2001.
As the order dated 28th March, 2008 was passed without notice to the defendants the said order and the modified order be set aside. Reliance is place on Order 9 Rule 5 of the Code of Civil Procedure, Chapter VIII Rules 6 and 7 of the Original Side Rules, Salem Advocate Bar Association Vs. Union of India (UOI), , Fort Gloster Industries Ltd. and Another Vs. Tatanagar Transport Corpn. and Others, 1994 (2) CHN 161; 2006 (3) CLT 230; East Bengal Steam Services Ltd. Vs. East Bengal Steam Service and Engg. Works Workers Co-operative Industrial Society Ltd. and Others, and an unreported decision in APOT No. 780 of 2002 (Deepak Prakash v. Jayanta Bose). For all the said reasons, therefore, the suit be dismissed and the order dated 28th March, 2008 be set aside.
Counsel for the plaintiff submits that the suit was filed on 9th August, 2001 and an application filed for judgement on admission immediately thereafter. Alongwith the said application, a copy of the plaint was served on the defendants. The decree was passed on 11-12-2002 and such decree was challenged in appeal which was allowed on 11-12-2006. The appeal was filed only after the decree was put into execution on 14-03-2004. The SLP filed was dismissed on 30th March, 2007. It is only after dismissal of the SLP that the application for dismissal of suit was filed on 23rd August, 2007. The application for extension before the Master was filed on 4th March, 2008. In view of the inclusion of Chapter XXXIXA of the Original Side Rules as per Rule 3, all applications have to be routed through the Central Filing System. The suit was not placed for dismissal under Chapter X Rule 35. The provision of Chapter XXXI Rule 8 and Chapter XXXVIII Rule 46 have application and Order 9 Rule 5 of the CPC will not apply to the facts of this case. Reliance is placed on 2000 (3) CLT 401; Kalyan Kumar Basak Vs. Salil Kumar Basak and Others, ; the unreported decision in APD 669 of 2003 (Hindustan Motors Limited v. National Insurance Company Limited) and the unreported decision in APOT No. 780 of 2002 (Deepak Prakash v. Jayanta Bose). In April, 2007, after proceedings before the Supreme Court ended, an application was filed for substitution of the defendant No. 1. Such prayer was allowed on 31st August, 2007. As steps were taken by the plaintiff to pursue proceedings which ended in March, 2007 and the application for substitution filed and order passed thereon, in August, 2007, the returnable date for delivering the writ of summons be extended. In fact, the Original Side Rules does not contemplate dismissal of the suit in case of non-delivery or non-lodging of the writ of summons. The Advocate-on-Record at the time of filing of the suit was put in sufficient funds for taking steps to issue and deliver the writ of summons. Therefore, no laches can be attributed to the plaintiff and default, if any, can be attributed only to the Advocate. In exercise of inherent powers the plaintiff is entitled to extension of the returnable date of the writ of summons. As the death of the defendant No. 1 has been recorded in August, 2007 the question of limitation does not arise and Article 137 of the Limitation Act will apply. By passing the order dated 28-3- 2008 modified by order dated 3rd July, 2009 the Master has done substantial justice and the writ of summons has been served. Procedural law which is the hand-maid of justice ought not to overtake substantive law. By abundant caution an application has been filed for extending the time to lodge the writ of summons. For all the said reasons, the application filed by the defendants be dismissed.
In reply counsel for the defendants submits that 1985 (1) CHN 375 and 1986 Cal 295 have been held as not good law in Salil Dutta Vs. T.M. and M.C. Private Ltd., . As the said two judgements of the Calcutta High Court were based on Rafiq and Another Vs. Munshilal and Another, Therefore, laches on the part of the Advocate is no ground for grant of leave to issue and deliver the writ of summons. The plaintiff has changed its Advocate only with the purpose of seeking an extension of the returnable date of issuance of summons. The first change was taken in 2003 and the second change taken in 2006. Therefore, order be passed on this application.
Having considered the submissions of the parties, C. S. 405 of 2001 was filed in August 2001. Immediately thereafter an application under Order 12 Rule 6 of the CPC was filed and a decree passed on 11-12-2002. The said decree was put into execution in March, 2004 and an appeal filed in 2005. Such appeal was disposed of in December, 2006. The said proceedings were pursued both by the plaintiffs and the defendants. The plaintiff was seeking to uphold its decree while the defendants were seeking to set it aside. This continued till March, 2007. It is only after the dismissal of the SLP that G. A. 2683 of 2007 was filed. In the said application in paragraph 15, it has been categorically stated that the primary concern of the defendants was to have the decree dated 11-12-2002 set aside. Therefore, there can be no doubt that till March, 2007 the parties were pursuing a particular proceeding.
Now adverting to the relevant provisions of the CPC and the only provision that can be applicable is Order 9 Rule 5 which contemplates extension of the returnable date in case the summons has been returned unserved. In fact, the summons was neither delivered nor lodged for service. A substitution application was filed in April, 2007 and allowed on 21st August, 2007. Therefore, the suit on and from August, 2007 will not be barred by laws of limitation.
Chapter VIII Rules 6 of the Original Side Rules contemplates extension of time for taking out and delivering the Writ of Summons to the Sheriff.
Once a litigant entrusts the filing of the suit to an Advocate by deposit of sums, the Advocate is under an obligation to take all steps. In the instant case too the Advocate was put in funds for filing the suit and for lodging the writ of summons. Default, in lodging the writ of summons cannot, therefore, be attributed to the litigant but will amount to negligence or laches on the part of the Advocate. As in the instant case the summons has not returned unserved, therefore, it is not a case under Order 9 Rule 5 of the Code of Civil Procedure. The Original Side Rules is silent with regard to the penal provision in case of not lodging the writ of summons. It does postulate an extension of time provided sufficient cause exists.
In the instant case till March 2007 the parties were concerned with the decree of 2002. An application for substitution was filed in 2007 and allowed in August, 2007. It was thereafter that G. A. 2683 of 2007 was filed.
The application for extension of time to issue and deliver the summons was not so gross to warrant dismissal of suit. In fact, the defendants in G. A. 2683 of 2007 have pleaded that till the filing of the application its primary concern was to set aside the decree. If the Advocate or plaintiff had not pursued the proceeding filed by the defendants but had remained inactive since the filing of the suit, negligence to the plaintiff could have been attributed but this is not so here.
Service of Writ of Summons is nothing but procedural law which ought not to defeat substantive justice. Non-service, therefore, cannot be attributed to the plaintiff as sufficient funds were given to the plaintiff''s Advocate.
Even assuming that Article 137 of the Limitation Act is to apply as the death of the defendant No. 1 was recorded in 2007, the right to bring the legal heirs on record arose in 2007, the application filed is within 3 years, therefore, (1994) 2 CHN 161 can have no application.
Deepak Prakash''s case is distinguishable on facts as it was not a case of non-lodgment of Writ of Summons but a case of misplacement of the Writ of Summons by the Department which explanation was not accepted by Court.
Similarly Salil Dutta Vs. T.M. and M.C. Private Ltd., is distinguishable as it was a case of nonappearance of the defendant on the advice of Advocate and construed as non-cooperation with Court. Such is not the case here as the plaintiff had put its Advocate in funds.
East Bengal Steam Services Ltd. Vs. East Bengal Steam Service and Engg. Works Workers Co-operative Industrial Society Ltd. and Others, is also inapplicable as negligence of Counsel and plaintiff''s active participation was absent. In the instant case the plaintiff had done all that it was required to do. It had also changed Advocates but the changed Advocates also did not take steps and lapse on their part is also evident.
91 CWN 391 was a case under Order 9 Rule 5 of the CPC and has, therefore, no application.
In (2006) 3 CLT 230 the explanation given for non-lodging of the Writ of Summons viz. the plaintiff''s belief that summons need not be served till disposal of the demurer application was not accepted. No such explanation is sought to be relied on by the plaintiff herein.
The plaintiff had taken steps to deposit sums with its Advocate and the Advocate did not issue or deliver the summons, therefore, AIR 2003 SC 189 can have no application as it did not consider default of an Advocate to issue summons.
As regards the extension granted on 28-3-2008, by order dated 21st August, 2007 the plaintiff was directed to serve a notice on the defendant prior to filing an application and an application though filed before the Master was not served on the defendants nor is such service borne out from the records of the Master. Therefore, the order dated 28th March, 2008 is contrary to the directives contained in the order dated 21st August, 2007 and cannot be sustained. Accordingly, the order dated 28th March, 2008 is set aside. As G. A. 1634 of 2009 has been filed for seeking extension of the returnable date for lodging of the writ of summons if calculated from 2007 the application was filed within 2 years. The explanation given therein evidences laches and default on the part of the Advocate for which change had to be taken. Although an order of extension was granted on 28-3-2008, steps were taken to lodge the Writ of Summons, ironically, in the name of the deceased defendant. This can be attributed only to the plaintiff''s Advocate and not to the plaintiff. The departure of the plaintiff''s Advocate from Calcutta was not foreseen either. So also pursuing the proceedings vis-a-vis the decree of 2002, do constitute sufficient cause for not lodging the Writ of Summons. Accordingly G. A. 1634 of 2009 is allowed and there will be an order in terms of prayers (a) to (c) of the Notice of Motion, and G. A. 2683 of 2007 dismissed.