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High Court Of Calcutta
Sankar Prasad Mitra, Salil Kumar Datta
ELECTRICAL INDUSTRIES CORPORATION - Appellant
Versus
PUNJAB NATIONAL BANK - Respondent
A. F. O. O. 74 Of 1977
Decided On : 07/13/1978
CIVIL PROCEDURE CODE, 1908 - ORDER 9 RULE 5(1) - DISMISSAL OF SUIT - FAILURE TO APPLY FOR ISSUE OF FRESH SUMMONS WITHIN THREE MONTHS FROM RETURN OF UNSERVED SUMMONS - SUFFICIENT CAUSE FOR DELAY - LIMITATION ACT, 1963 - SECTION 5 - CONDONATION OF DELAY - ORIGINAL SIDE RULES, CHAPTER VIII, RULES 6 AND 8 - APPLICABILITY.
Fact of the Case:
Plaintiff failed to apply for issue of fresh summons within three months from the return of unserved summons. Plaintiff sought condonation of delay under Section 5 of the Limitation Act, 1963, citing confusion due to change of attorneys as the reason for the delay.
Finding of the Court:
The court held that the explanation provided by the plaintiff for the delay was not satisfactory and that the plaintiff had failed to demonstrate sufficient cause for the delay under Section 5 of the Limitation Act, 1963. The court further held that Order 9 Rule 5(1) of the Civil Procedure Code, 1908, applied to the Original Side of the Calcutta High Court and was not affected by Rules 6 and 8 of Chapter VIII of the Original Side Rules.
Issues: 1. Whether the plaintiff had sufficient cause for the delay in applying for issue of fresh summons under Section 5 of the Limitation Act, 1963? 2. Whether Order 9 Rule 5(1) of the Civil Procedure Code, 1908, applied to the Original Side of the Calcutta High Court.
Ratio Decidendi: 1. The court held that the plaintiff's explanation for the delay, which was confusion due to change of attorneys, was not satisfactory and did not constitute sufficient cause under Section 5 of the Limitation Act, 1963. 2. The court held that Order 9 Rule 5(1) of the Civil Procedure Code, 1908, applied to the Original Side of the Calcutta High Court and was not affected by Rules 6 and 8 of Chapter VIII of the Original Side Rules.
Final Decision: The court dismissed the appeal and upheld the dismissal of the suit by the trial court.
( 1 ) THIS is an appeal from a judgment delivered by Mr. Justice Salil K. Roy Chowdhury on the 25th Aug. , 1076.
( 2 ) THE present suit was instituted on July 11, 1973 against the defendants for leave under Clause 12 of the Letters Patent, for a decree for Rs. 4,45,835/-; for a declaration that the plaintiff's account with the Punjab National Bank was wrongly debited and other reliefs.
( 3 ) ON July 23, 1973, the writ of summons was taken out and lodged with the Sheriff. The time to serve the writ of summons on the defendants Nos. 3, 5 and 6 expired on Nov. 14, 1973. The Master directed the Sheriff to serve the Writ of Summons on the defendants Nos. 3, 5 and 6 by registered post on the 6th Dec. , 1973 and the returnable date was extended by ten weeks.
( 4 ) IN Dec. , 1973, M/s. Fox and Mondal received instructions from the plaintiff to obtain a change of attorney from Anand, Das Gupta and Sagar.
( 5 ) ON Jan. 7, 1974, the Writ of Summons, directed to be served on the respondents Nos. 3, 5 and 6 was returned unserved to the Sheriff's office through the General Post Office.
( 6 ) ON Jan. 30, 1974, M/s. Fox and Mondal filed a warrant for attorney with the consent of Anand, Das Gupta and Sagar.
( 7 ) ON an application by the first defendant, an order was passed on May 6, 1975 directing the filing of affidavit of documents by the parties who had entered appearance.
( 8 ) ON June 27, 1975, Mr. Justice Salil K. Roy Chowdhury dismissed the suit. The plaintiff took a change from M/s. Fox and Mondal to Anand, Das Gupta and Sagar on Jan. 14, 1976. Anand, Das Gupta and Sagar obtained the mode of service from the Sheriff's office on Jan. 21, 1976 and came to know that the service of the Writ of Summons was not effected on the defendants Nos. 3, 5 and 6.
( 9 ) THEREUPON Anand, Das Gupta and Sagar inspected the cause bundle of the suit on Feb. 23, 1976 and discovered that the suit was dismissed on June 27, 1975 by Mr. Justice. Salil K. Roy Chowdhury.
( 10 ) ON May 14, 1976, an application was made to Mr. Justice Salil K. Roy Chowdhury for restoration of the suit. The learned Judge allowed the application and set aside the order of dismissal. It is obvious that upon restoration the suit went back to its original position on June 27, 1975 when Mr. Justice Salil K. Roy Chowdhury had dismissed the suit.
( 11 ) ON May 28, 1976 the plaintiff made an application for condonation of delay in filing the application for issue of a fresh Writ of Summons and for extension of time for returnable date of the Writ of Summons and for a direction to the Sheriff of Calcutta to serve the Writ of Summons on the defendants Nos. 3, 5 and 6.
( 12 ) THIS application for issue of a fresh Writ of Summons and extension of time for returnable date came up for hearing before Mr. Justice Salil K. Roy Chowdhury on Aug. 25, 1976. The learned trial Judge by his judgment delivered on that date dismissed the application. The present appeal is directed against the order of the 25th Aug. , 1976.
( 13 ) IT is relevant to consider the provisions of Order 9 Rule 5 (1) of the Civil P. C which are as follows :--"order 9, Rule 5-- (1 ). Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, 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 making such application for such period as it
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