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HIGH COURT OF CALCUTTA
P. B. Mukharji
SHAW AND CO. - Appellant
Versus
B. SHAMALDAS AND CO. - Respondent
Suit 3896 Of 1950
Decided On : DECEMBER 23, 1953
ORDER 9, RULE 5, CIVIL PROCEDURE CODE - DISMISSAL OF SUIT - FAILURE TO APPLY FOR FRESH SUMMONS WITHIN THREE MONTHS - WAIVER OF LIMITATION BY ENTERING APPEARANCE - INTERPRETATION.
Fact of the Case:
Plaintiff filed a suit for libel in 1950. The writ of summons was issued on 15-9-1950 for service on the defendant. The returnable date of the writ of summons was 29-11-1950. Between 18-9-1950 and 25-6-1951, the plaintiff took no steps to have the summons served. The Sheriff, therefore, on 29-6-1951 made a return that no one on behalf of the plaintiff attended at his office to have the writ of summons served on the defendant. On 7-7-1953, the plaintiff applied ex parte for a fresh writ of summons, extension of returnable date by such fresh summons by two months from the issue thereof, and leave to serve the defendant by registered post. The reasons placed in that petition to explain the plaintiff's inaction were talks of settlement and change of defendant's address in the mean time. On that petition, the plaintiff obtained an ex parte order from the Master on the same 7-7-1953 for issue of fresh summons and leave to serve the summons by registered post. This fresh summons was duly served on 31-7-1953 by post on the defendant firm and they entered appearance on 13-8-1953. The defendant thereafter searched the records of this suit and on 4-9-1953 took out a notice of motion for dismissal of the suit under Order 9, Rule 5, Civil Procedure Code.
Finding of the Court:
The court held that Order 9, Rule 5, Civil Procedure Code applies to the Original Side of the Calcutta High Court. The court also held that the plaintiff's failure to apply for a fresh summons within three months from the date of the Sheriff's return of the writ of summons unserved on the defendant was fatal to the suit and that the suit must be dismissed. The court further held that the defendants' entry of appearance did not waive the limitation period prescribed by Order 9, Rule 5, Civil Procedure Code.
Issues: 1. Whether Order 9, Rule 5, Civil Procedure Code applies to the Original Side of the Calcutta High Court? 2. Whether the plaintiff's failure to apply for a fresh summons within three months from the date of the Sheriff's return of the writ of summons unserved on the defendant was fatal to the suit? 3. Whether the defendants' entry of appearance waived the limitation period prescribed by Order 9, Rule 5, Civil Procedure Code?
Ratio Decidendi: 1. Order 9, Rule 5, Civil Procedure Code is a wholesome and salutary provision intended to activate laggard plaintiffs, who after presenting a plaint take no further interest in the suit which they have instituted. 2. The language of Order 9, Rule 5, Civil Procedure Code is clear and unambiguous. It provides that if the plaintiff fails to apply for a fresh summons within three months from the date of the return of the unsuccessful service, the court shall dismiss the suit. 3. The defendants' entry of appearance did not waive the limitation period prescribed by Order 9, Rule 5, Civil Procedure Code. A waiver is an intentional relinquishment of a known right. The defendants could not have known that the suit was liable to be dismissed under Order 9, Rule 5, Civil Procedure Code before they entered appearance and searched the records.
Final Decision: The court dismissed the suit and ordered the plaintiff to pay the costs.
( 1 ) THIS is a battle over technicalities.
( 2 ) IT is an application by the defendant for dismissal of the suit under Order 9, Rule 5, Civil P. C. The notice of motion was taken out by the defendant firm on 4-9-1953 and by special leave made returnable on 8-9-1953. The notice of motion seeks first for an order that the suit be dismissed and then asks that if the suit be not dismissed, the time for filing written statement be extended.
( 3 ) TO appreciate the controversy the relevant facts should be set forth.
( 4 ) IT is a suit for libel where the plaintiff claims Rupees One Lakh as damages against the defendant firm. It was instituted on 7-9-1950. The writ of summons was issued on 15-9-1950 for service on the defendant. The returnable date of the writ of summons was 29-11-1950. Between 18-9-1950 and 25-6-1951, a period of about nine months, the plaintiff took no steps to have the summons served and he did not attend the Sheriff's office for such service. The Sheriff, therefore, on 29-6-1951 made the following return:"i do hereby certify that no one on behalf of the plaintiff company within-named attended at my office to have the within writ of summons served on the defendant company within-named. Dated 25-6-1951. "
( 5 ) THE result, therefore, is that the Sheriff returned the writ of summons on 29-6-1951 un-served on the defendant. Then began another longer period of inaction on the part of the plaintiff. Between 29-6-1951 and 6-7-1953, a period of more than two years, the plaintiff took no steps to apply for any fresh summons. On 7-7-1953 the plaintiff applied ex parte before the Master on a petition affirmed on the same day for: (1) a fresh writ of summons, (2) extension of returnable date by such fresh summons by two months from the issue thereof, and (3) leave to serve the defendant by registered post. The reasons placed in that petition to explain the plaintiff's inaction are talks of settlement and change of defendant's address in the mean time. No dates are given when such talks of settlement began nor when they failed. No date either was given in that petition stating when the defendant firm changed their address. On that petition the plaintiff obtained an ex parte order from the Master on the same 7-7-1953 for issue of fresh summons and leave to serve the summons by registered post.
( 6 ) THIS fresh summons this time was duly served on 31-7-1953 by post on the defendant firm and they entered appearance on 13-8-1953. The defendant thereafter searched the records of this suit and on 4-9-1953 took out this notice of motion for dismissal of the suit under Order 9, Rule 5, Civil P. C.
( 7 ) ON these facts, therefore, Mr. R. C. Deb, learned counsel for the defendant, has urged that as the fresh summons was not applied for within the period of three months from the Sheriff's return of the writ of summons unserved on the defendant, the law requires that the court shall dismiss the suit. Admittedly, between the return of the Sheriff of the first writ of summons unserved and the application for issue of a fresh summons more than three months, indeed more than two years had expired.
( 8 ) ORDER 9, Rule 5, Civil P. C. says: (1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of three months from the date of the return made to the court by the Officer ordinarily certifying to the Court returns made by the serving officers, 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- (a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for maki
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