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1958 Supreme(Cal) 285
HIGH COURT OF CALCUTTA
S. C. Lahiri, Renupada Mukherjee
NARENDRA NATH NANDI - Appellant
Versus
AMIYA CHOUDHURY - Respondent
Civil Rule 1478 Of 1957
Decided On : DECEMBER 19, 1958
AMAL KUMAR ROY, JNANENDRA NATH BAKSHI, Jyotish Chandra Banerjee
The mandatory language of an enactment does not necessarily mean that any act done in violation of its provisions will be invalid. Mandatory enactments may, under certain circumstances, be considered directory only, particularly when the invalidation of acts done in violation of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty.
Headnote:
WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 17 - SERVICE OF SUMMONS - IRREGULARITY - EFFECT ON TENANT'S OBLIGATION TO DEPOSIT RENT - INTERPRETATION OF ORDER 5, RULE 5 OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:
The petitioner, a tenant, was served with a writ of summons in a suit for ejectment filed by the opposite party, the landlord. The writ of summons was in a common form and contained all three alternatives mentioned in Order 5, Rule 5 of the Code of Civil Procedure, without specifying the purpose for which the petitioner's attendance was required. The petitioner failed to deposit the rent in accordance with Section 17 of the West Bengal Premises Tenancy Act, 1956, and the trial court struck out his defence against delivery of possession.
Finding of the Court:
The court held that the failure to comply with the requirements of Order 5, Rule 5 of the Code of Civil Procedure did not invalidate the writ of summons and that the service of such a writ amounted to "service of a writ of summons" within the meaning of Section 17 of the West Bengal Premises Tenancy Act, 1956. The court further held that the irregularity in the writ of summons did not affect the merits of the case or the jurisdiction of the court and that it was cured by Section 99 of the Code of Civil Procedure.
Issues: 1. Whether the failure to comply with the requirements of Order 5, Rule 5 of the Code of Civil Procedure invalidated the writ of summons? 2. Whether the service of a writ of summons containing all three alternatives mentioned in Order 5, Rule 5 of the Code of Civil Procedure amounted to "service of a writ of summons" within the meaning of Section 17 of the West Bengal Premises Tenancy Act, 1956? 3. Whether the irregularity in the writ of summons affected the merits of the case or the jurisdiction of the court?
Ratio Decidendi: 1. The court held that the mandatory language of Order 5, Rule 5 of the Code of Civil Procedure did not necessarily mean that any act done in violation of its provisions would be invalid. The court relied on the principle that mandatory enactments may, under certain circumstances, be considered directory only. 2. The court held that the essential aim of the legislature in enacting Order 5, Rule 5 was to give the defendant an adequate and proper notice of the plaintiff's claim and to call upon him to answer or contest the claim. The court found that this aim was not defeated by the service of the irregular writ of summons in the present case, as the defendant had exercised his option to contest the suit on the very first date of appearance. 3. The court held that the irregularity in the writ of summons did not affect the merits of the case or the jurisdiction of the court. The court further held that the irregularity was cured by Section 99 of the Code of Civil Procedure, which provides that no decree shall be reversed or varied on account of any error, defect, or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court.
Final Decision: The court discharged the rule and held that the trial court was right in striking out the petitioner's defence against delivery of possession.
( 1 ) THIS application under Section 115 of the Code of Civil Procedure and under Article 227 of the Constitution is directed against two orders dated 25-2-1957 and 9-5-1957 made by the Second Additional Court of the Munsif at Alipore.
( 2 ) THE plaintiff opposite party instituted a suit for recovery of possession of certain premises let to the petitioner. The suit was brought on 16-8-1956 and the writ of summons served on the defendant on 31-8-1956 who entered appearance in the suit on 17-9-56. On 2-1-1957 the written statement was filed. An application was made on 7-1-1957 by the plaintiff opposite party under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 for an order that the defence against delivery of possession be struck out.
( 3 ) THE learned Munsif considered the matter and found that the defendant had failed to pay rent for the month of Chaitra 1362 B. S. He also held in effect that there was default in respect of rent for the month of Bhadra 1363 B. S. Thus there was failure according to the Munsif on the part of the defendant to pay or deposit the arrears of rent in accordance with the provisions of the West Bengal Premises Tenancy Act and in that view the defence against delivery of possession was directed to be struck out.
( 4 ) IT appears an application was made by the defendant petitioner for review of the order directing the defence against delivery of possession to be struck out. This application was heard in due course and the learned Munsif came to the finding that no grounds had been made out which would justify reversal or modification of the order made earlier.
( 5 ) THE defendant thereafter moved this Court and obtained the present rule.
( 6 ) ON behalf of the petitioner it has been contended that the writ of summons which was served in this case did not comply with the requirements of the law; such a writ though in effect a command of the Code was incapable of being obeyed by having been expressed in an omnibus manner to do very many things; that only caused confusion and robbed it of its content. The complaint is that portions in the printed summons form, wholly inept in the case, have not been crossed out with the result that the petitioner did not know what he was to answer. Reliance has been placed in support of this contention upon a decision of Banerjee J. in the case of Madar Khan v. Kaiser Ali, 62 Cal WN 718 which held that the provisions relating to the issue of summons under Order 5, Rule 5 of the Code of Civil Procedure were mandatory and failure to comply with the requirements of the rule would not amount to service of a writ of summons within the meaning of Section 17 of the West Bengal Premises Tenancy Act, 1956.
( 7 ) IF one may say so with respect, the principle enunciated in the decision is bound to commend itself to everyone connected with the administration of justice in the country. The learned Judge's reprimand has been timely. It is indeed desirable that the defendant should not be served with a piece of paper requiring him to do quite a number of things wholly inappropriate to the case concerned and perhaps irrelevant to the question raised in the suit.
( 8 ) RULE 5, Order 5 of the Code provides that the Court shall determine at the time of issuing the summons whether it shall be for the settlement of issues only, or for the ascertainment whether the suit would be contested, or for final disposal of the suit and the summons shall contain a direction accordingly. The terms of the rule require the Court to indicate with precision the purpose for which the writ is issued and there can be no question that it is highly desirable that a defendant should be told with precision what exactly is the purpose for which the writ has been issued. But that is about as far as one can go.
( 9 ) IT is to be considered whether in the facts of this case, it would be necessary or proper to insist upon a literal compliance with the requirement of the rule
