Women's Indian Association (Regd.) vs V. Mangudi

Ratnam, J.—The defendant in O.S. No. 5898 of 1986, First Assistant Judge, City Civil Court, Madras, is the petitioner in this civil revision

petition, directed against the order of the lower appellate court holding that the petition in I.A. No. 4611 of 1987 filed by the respondent herein,

claiming benefits u/s 9 of the Madras City Tenants Protection Act (hereinafter referred to as the ''Act''), is in time. In order to appreciate the

controversy between the parties, it would be necessary to refer briefly to the circumstances giving rise to these proceedings. On 25.8.1986, the

respondent herein instituted O.S. No. 5898 of 1986 against the petitioner praying for the relief of mandatory injunction directing the petitioner to

restore electricity supply stated to have been cut off by the petitioner on 20.9.1985 without assigning any reason, on the footing that he is a tenant

in respect of a piece of land measuring 1,350 sq.ft., on a monthly ground rent of Rs. 20 under the petitioner and the superstructure belonged to

him. In the written statement filed by the petitioner, inter alia, it was stated that the respondent is not a tenant at all, but a trespasser and that he was

not entitled to pray for the reliefs in the suit. In addition, in the written statement the petitioner projected a counter-claim for recovery of possession

of the property from the respondent and prayed for the relief of ejectment of the respondent, after paying the requisite court-fee, therefor. Though

the written statement to this effect containing a counter-claim for recovery of possession from the respondent was filed into court on 1.9.1986, it is

seen that there is no endorsement on the written statement filed, for service of the copy of the written statement on the counsel for the respondent.

Even so, a reply statement verified on 25.11.1986, was filed by the respondent on 17.12.1986 again, without any endorsement for service thereof,

on the counsel for the petitioner in the trial court. Therein, the respondent repudiated the claim of the petitioner that he is a trespasser and reiterated

that he is entitled to the relief of mandatory injunction for the restoration of -the electricity supply to the premises in question. While matters stood

thus, the respondent filed I.A. No. 4611 of 1987 in the suit, O.S. No. 5898 of 1986 on 25.2.1987, claiming the benefits of Section 9 of the Act

and praying that he should be permitted to purchase the land. That application was resisted by the petitioner, among others, on the ground that the

application was barred by limitation.

The learned first Assistant Judge, City Civil Court, Madras, found that after the filing of the written statement by the petitioner on 1.9.1986, the

suit had been adjourned to 17.10.1986 and again, to 18.11.1986 for framing issues and subsequently, a reply statement was filed by the

respondent on 17.12.1986 and that the respondent was fully aware of the counter-claim in the written statement (regarding his ejectment) filed by

the petitioner even on 17.10.1986, but had not filed an application claiming benefits u/s 9 of the Act within one month and therefore, the

application filed on 25.2.1987, was barred by limitation. Aggrieved by this, the respondent preferred an appeal in C.M.A. No. 106 of 1990

before the 6lh Additional Judge, City Civil Court, Madras. The lower appellate court found that the claim put forward in the written statement for

ejectment as a counter-claim, did not tantamount to service of summons on the respondent, as contemplated u/s 9 of the Act and that the

respondent had also not been directly and independently informed of the proceedings in ejectment initiated by the petitioner and, therefore, the

conclusion of the trial court that the application was filed out of time, cannot be accepted. Ultimately, the lower appellate court allowed I.A. No.

4611 of 1987 and directed the trial court to "" appoint a commissioner arid ascertain the market value of the property and further directed the

respondent to pay the amount so ascertained in one lump sum.

In challenging the correctness of the order so passed, learned Counsel for the petitioner contended that having regard to the provisions of Order

3 and Order 8 of the CPC and the filing of the reply statement by the respondent on 17.12.1986 meeting the counter-claim in ejectment of the

respondent made in the written statement filed by the petitioner, and the filing of the petition by the respondent claiming benefits u/s 9 of the Act

beyond thirty days from the date of the reply statement. The application filed was clearly out of time. It was also further submitted that in a case

like this where the relief of ejectment is prayed for in the written statement and by way of a counter-claim therein, the service of summons as

contemplated by Section 9 of the Act cannot be effected, though that would not mean that there is no period prescribed at all for the filing of an

application claiming benefits u/s 9 of the Act, but that the filing of the reply statement by the respondent on 17.12.1986, meeting the case of

ejectment put forward by the petitioner at least should be taken as the point of time from which the period of thirty days prescribed u/s 9 of the Act

would begin to run and therefore, the application filed by the respondent on 25.2.1987 was barred by limitation. Reference in this connection was

also made to certain observations in the decision reported in K. Srinivasan Iyengar Vs. Khader Mohideen Rowther (died) and Others, . Per

contra, learned Counsel for the respondent strenuously contended that short of service of summons on the defendant in the suit, there is no

question of tiling an application claiming the benefits of Section 9 of the Act, with in thirty days of the date of such service of summons and as in this

case, there was no service pf summons in the suit as ordinarily understood, the view taken by the lower appellate court was correct. Learned

Counsel also placed reliance upon the decision reported in Thoyommal v. Rathnavelu Nadar AIR 1927 Mad. 113.

Before proceeding to consider the contentions so advanced, it would be necessary to refer to a few undisputed facts. After the institution of the

suit on 25,8.1986 and the service of summons in the suit on the petitioner, a written statement was filed by the petitioner on 1.9.1986. In that

written statement, the petitioner, by means of a counterclaim, prayed for ejectment of the respondent on the ground that he is a trespasser. The

written statement so filed does not bear any endorsement for service of a copy thereof on the counsel for the respondent in the trial court. Even so,

the respondent had filed a reply statement on 17.12.1986, repudiating the claim made by the petitioner in the written statement by way of a

counter-claim. It is there after on 25.2.1987, the respondent filed an application claiming the benefits u/s 9 of the Act. u/s 9 of the Act, on the

institution of a suit in ejectment or proceeding u/s 41 of the Presidency Small Cause Courts Act, 1882, by the landlord, the tenant, entitled to

compensation u/s 3 may apply to the court within one month, after the service on him of summons, for an order that the landlord shall be directed

to sell, the whole or part of the land, for a price to be fixed by the court. From the aforesaid provision, it is clear that this is intended to apply to a

case, where a suit is instituted by the landlord for the ejectment of the tenant, in which case, on the service of summons in the suit on the tenant,

within thirty days from the date of such service, he may apply to the court praying for the reliefs u/s 9 of the Act. In this case, the respondent had

instituted the suit, O.S. No. 5898 of 1986 and the claim for ejectment was made by the petitioner herein, in the written statement, by way of a

counter-claim. The respondent had been represented by counsel in the suit, O.S. No. 5898 of 1986. Under the provisions of Order 3, Rule 3 of

the Code of Civil Procedure; process served on the recognised agent of party shall be as effectual, as if the same had been served on the party in

person, unless the court otherwise directs. Further, under Order 3, Rule 5, C.P.C. process served on the pleader, who has been duly appointed to

act in court for any party, shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the

court otherwise directs, shall be as effectual for all purposes, as if the same had been given to or served on the party in person. Again, under Order

8, Rule 6-A(2), Civil Procedure Code, counter-claim shall have the same effect as a cross suit and under Sub-rule 4 of the Order 8, Rule 6-A, the

counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. It is in the background of the aforesaid provisions relating

to service and the nature of a counterclaim, that the need for service of summons as in a suit, for purposes of Section 9 of the Act, has to be

considered. In the Law Lexicon, reprint edition 1987, by P. Ramanatha Aiyar, at page 1236, the word ""summons"" has been stated to be a process

issued from the office of a court of Justice requiring the person to whom it is addressed to attend the court for the purpose therein stated.

Essentially, a summons is a communication emanating from a court under the signature of the Presiding Officerand addressed to a person to appear

before the court and answer the claim made against him in the suit or other proceeding. Primarily, therefore, the object of the issue of summons is

to put the opposite party in a suit or proceeding on notice of-the claim made in the suit or proceeding as well as the basis therefore and also to call

upon him to meet the claim made. It is in this context, the observations relied on by learned Counsel for the petitioner in K. Srinivasan Iyengar Vs.

Khader Mohideen Rowther (died) and Others, , become relevant. Referring to the argument that the word ''summons'' has got to be understood in

the context as any process of court by which the possession of the tenant is actually threatened to be taken away, Jagadisan, J, pointed out that it

may be that such construction is just and equitable but, that the word ''summons'' clearly indicated summons in the suit and the reference to a

''summons'' in Section 9 of the Act is only to a suit. However, that decision did not deal with a situation as in the present case. While under Order

8, Rule 6-A(4), Civil Procedure Code, a counter-claim shall be treated as a plaint, there is no provision made with reference to the service of

summons as such, in a counter-claim made in a written statement, treating it as a plaint. When the purpose of service of summons is to put the

opposite party to a litigation on notice of the claim made and to enable him to meet it by appearing before the court on a date specified, the service

of a written statement containing a counter-claim, on the"" counsel for the opposite party, as in this case, would, in my view, be the same as service

of summons in a suit, though in form a counter-claim. In this case, only in the course of the counter-claim made by the petitioner, the possession of

the respondent was actually threatened and the service of the written statement on the counsel, as in this case, would be sufficient, in my view, to

have put the respondent on notice of his threat to possession and the need to take steps to meet such a threat. Further, in this case, though there is

no endorsement as such regarding service of the written statement containing the counter-claim, on the counsel for the respondent before the trial

court, yet, it is seen that on 17.12.1986, the respondent had filed a reply statement meeting the case set out in the written statement by way of a

counter-claim. Even in regard to the reply statement filed by the respondent on 17.12.1986, no endorsement had been obtained from the counsel

for the petitioner (defendant in the trial court). However, the reply statement filed on 17.12.1986, could not have been so filed unless, it be that a

copy of the written statement containing the counter-claim was also made available to the counsel for the respondent and the respondent after the

service of the written statement filed by the petitioner on 1.9.1986, on he counsel for the respondent appearing in the trial court. That would be

effective service of summons for purposes of Section 9 of the Act. Otherwise, it is difficult to understand as to how the respondent could have filed

the reply statement on 17.12.1986without knowing the contents of he written statement containing the counter-claim regarding the relief of

ejectment sought for by the petitioner against the respondent. What is further significant in this case is that the application claiming benefits u/s 9. of

the Act, had not been filed even within thirty days after the filing of the reply statement on 17.12.1986. To accept the contentions of the learned

Counsel for the respondent, would be to hold that in cases like this, there could not be any time limit at all, for filing a petition claiming the benefits

u/s 9 of the Act. With reference to a counter-claim contained in a written statement, in the absence of any provisions in the CPC for service of

summons, it would follow that there is no period of limitation at all prescribed for filing an application, as the commencement of such period of

limitation, would be thirty days from the date of service of summons, which cannot at all be effected. Though in Thoyammal''s case A.I.R 1927

Mad. 113, it was held that service of summons should be personal, on the facts and circumstances prevailing in this case, the principle of that

decision cannot be pressed into service by learned Counsel for the respondent. On the facts of this case, it must be held that the earliest point of

time when the respondent had knowledge of the threat held out in respect of his possession, was on 1.9.1986, when the written statement

containing the counterclaim was made or at least on 17.12.1986, when the respondent filed a reply statement. Computing the period of thirty days

from either of the aforesaid dates, the application in I.A. No. 4611 of 1987 filed on 25.2.1987 was barred by time. The civil revision petition is

allowed consequently, the judgment of the lower appellate court is set aside and the order of the trial court will stand restored with costs.