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High Court Of Calcutta
PINAKI CHANDRA GHOSH
HINDUSTAN MOTORS LIMITED - Appellant
Versus
NATIONAL INSURANCE COMPANY LTD. - Respondent
G. A. 728 Of 2003
Decided On : 09/17/2003
WRIT OF SUMMONS - EXTENSION OF RETURNABLE DATE - JURISDICTION OF MASTER - LIMITATION - DISMISSAL OF SUIT - ORDER IX RULE 5, C. P. C. AND CHAPTER-VIII RULES OF ORIGINAL SIDE RULES OF CALCUTTA HIGH COURT - INTERPRETATION AND APPLICATION:
Fact of the Case:
Plaintiff filed a suit against the petitioner in 1987, but the writ of summons was served on the petitioner only in 2002. The petitioner filed applications seeking dismissal of the suit and recall of orders passed by the Master extending the returnable date of the writ of summons. The plaintiff contended that the Master had jurisdiction to extend the time and that the petitioner's rights were not prejudiced.
Finding of the Court:
The court held that the Master did not have jurisdiction to extend the time for service of the writ of summons without condoning the delay and that the petitioner's rights were prejudiced by the Master's orders. The court set aside the Master's orders and dismissed the suit.
Issues: 1. Whether the Master had jurisdiction to extend the time for service of the writ of summons without condoning the delay? 2. Whether the petitioner's rights were prejudiced by the Master's orders?
Ratio Decidendi: 1. The court held that Order IX Rule 5 of the C. P. C. and Chapter-VIII Rules of the Original Side Rules of the Calcutta High Court govern the issuance and service of writs of summons. These rules provide a specific time frame for taking steps in the suit and for serving the writ of summons. The Master does not have the power to extend the time for service of the writ of summons beyond the period prescribed in these rules without condoning the delay. 2. The court held that the petitioner's rights were prejudiced by the Master's orders because the petitioner was deprived of the opportunity to defend the suit. The petitioner did not receive notice of the applications filed by the plaintiff before the Master and was not able to present its case.
Final Decision: The court set aside the Master's orders extending the returnable date of the writ of summons and dismissed the suit.
( 1 ) THE petitioner being the National Insurance Company Ltd. has filed two applications being G. A. No. 3820/2002 and G. A. No. 728/2003. Both the applications by consent of the parties are taken up by me and are disposed of by this judgment.
( 2 ) THE petitioner in the application being G. A. No. 3820 of 2002 has prayed for an order that the suit filed against the petitioner be dismissed. In the other application being G. A. No. 728 of 2003 the petitioner has prayed for recalling of the order dated 23rd September, 1998 in G. A. No. 3561 of 1998 and order dated 25th June, 2002 in G. A. No. 2413 of 2002 passed by the learned Master on the applications filed by the plaintiff and further for dismissal of the said two applications.
( 3 ) ACCORDING to the petitioner, the writ of summons in the suit was served on the petitioner on 11th July, 2002 although the suit has been filed by the plaintiff on 25th June, 1987. The returnable date of writ of summons was extended by an order dated 23rd September, 1998 further and by an order dated 25th June, 2002 by the learned Master. The plaintiff did not take any steps after the time was extended by the learned Master by an order dated 23rd September, 1998 and returnable date expired. Subsequently, on an application of the plaintiff the order was passed on 25th June, 2002 by the learned Master and the returnable date was extended till 16th September, 2002. Then and then only the said writ of summons was served on the petitioner on July 11, 2002.
( 4 ) THE Advocate-on-Record after entering appearance in the suit caused an enquiry into the matter through its Advocate-on-Record and the petitioner learnt that the writ of summons was lodged by the plaintiffs advocate-on-Record only on 9th July, 2002. In spite of request made by the Advocate-on-Record of the petitioner, such applications for extension of returnable date of writ of summons were not served upon the petitioner by the Advocate-on-Record of the plaintiff. According to the petitioner, the plaintiff is guilty of gross negligence and latches on their part and intentionally did not take any step in the suit for service of the writ of summons. The writ of summons should have been served not later than three weeks (under the rules of the Original Side of this Hon'ble Court ).
( 5 ) THE plaintiff filed a writ application being C. R. No. 8118 (W) of. 1992 (Hindustan Motors Co. Ltd. v. National Insurance Co. Ltd. and Ors.) making a statement in the said writ petition that the petitioner undertook to withdraw the instant suit upon the said writ petition being admitted. According to the petitioner, the subject matter of the suit and the writ petition are same and the plaintiff has no right to initiate two separate proceedings in respect of the same cause of action. Hence, the said application has become infructuous and the plaintiff intentionally did not take any step in the suit for service of the writ of summons on the petitioner for more than 14 years.
( 6 ) THE said writ petition was dismissed by this Hon'ble Court on 7th september, 2001.
( 7 ) ON 17th February, 2003, Advocate-on-Record of the plaintiff forwarded the said two applications for extension of the returnable date of the writ of summons to the Advocate-on-Record of the petitioner. According to the petitioner no ground has been made out in the said application justifying the extension of the returnable date of the said writ of summons. The grounds are identical in both the application and without assigning any reasons on 23rd September, 1998 and 25th June, 2002 the returnable date was extended by the learned Master. After the lapse of 14 years, according to the petitioner, such extension ought not to have been allowed by the learned Master. The learned Master did not have any jurisdiction to pass such order or to entertain the said applications after lapse of 14 and/ or 16 years. Hence the said orders were passed by the learned Master prejudicing the r
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