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High Court of Judicature at Calcutta
ASHIM KUMAR BANERJEE, SHUKLA KABIR SINHA, JJ.
SMT. Shalini Poddar & Others
Versus
M/S. VCK Share & Stock Broking Services Limited
A.P.O. No. 135 of 2010 & C.S. No. 405 of 2001
Decided On : 14-12-2012
SERVICE OF SUMMONS - DISMISSAL OF SUIT - EXTENSION OF TIME - MAINTAINABILITY OF APPEAL - LETTERS PATENT APPEAL - INTERPRETATION OF ORDER 9 RULE 5 OF THE CODE OF CIVIL PROCEDURE - COURT'S DISCRETION TO EXAMINE SUFFICIENT CAUSE FOR DELAY - DISTINCTION BETWEEN ORDER 9 RULE 5 OF THE CODE OF CIVIL PROCEDURE AND RULES OF THE CALCUTTA HIGH COURT, ORIGINAL SIDE - INHERENT POWER OF THE COURT TO DISMISS A SUIT FOR LATCHES - DISCRETION TO CONDONE LATCHES - ORDER 7 RULE 11 CLAUSE (E) AND (F) - ORDER 41 RULE 1 - FRIVOLOUS SUITS - COURT'S DISCRETION TO PREVENT BURDENING OF COURT RECORD - SERVICE OF APPLICATION FOR JUDGMENT UPON ADMISSION AND COPY OF PLAINT - OPPORTUNITY TO DEFEND THE PROCEEDING AT EVERY STAGE.
Fact of the Case:
Plaintiff filed a suit against the original defendants who died leaving their surviving appellants. The suit was decreed on the principal amount claimed in the plaint barring a small amount of interest that remained to be decided. After the death of the defendants, their heirs were brought on record. The defendants applied for dismissal of the suit on the ground that the plaintiffs did not take any step for service of the writ of summons. The learned Single Judge allowed the application and dismissed the suit. The plaintiffs challenged the order and obtained an order of extension of time to lodge the writ of summons. The defendants challenged the order of extension and the learned Single Judge set aside the order of the learned Master and at the same time extended the time to lodge the writ of summons. The defendants filed an appeal.
Finding of the Court:
The Court held that the appeal was maintainable under clause 15 of the Letters Patent. The Court further held that the Court had the discretion to consider whether the plaintiffs were prevented by sufficient cause from taking any step in the suit by serving writ of summons. If the causes were sufficient, they would be entitled to revive the suit or continue with the suit. The Court also held that Order 9 Rule 5 of the Code of Civil Procedure was not strictly applicable to the instant case as the High Court Rules did not specifically contemplate a situation where the court was to dismiss the suit when no step at all was taken for service of the writ of summons.
Issues: 1. Whether the appeal was maintainable? 2. Whether the suit was liable to be dismissed for non-service of the writ of summons within the returnable date? 3. Whether the Court had the discretion to revive the suit?
Ratio Decidendi: 1. The Court held that the appeal was maintainable under clause 15 of the Letters Patent as the order impugned had passed out a test as to whether it reached finality on an issue or a right of a party. 2. The Court held that the suit was not liable to be dismissed for non-service of the writ of summons within the returnable date as the Court had the discretion to consider whether the plaintiffs were prevented by sufficient cause from taking any step in the suit by serving writ of summons. 3. The Court held that the Court had the discretion to revive the suit if the causes were sufficient.
Final Decision: The appeal was dismissed.
Ashim Kumar Banerjee, J.
Bringing the facts involved in the present litigation in a narrow campus we would find a suit filed by the plaintiff-company as against one Debi Prasad Poddar and Ashok Kumar Poddar, the original defendants who died leaving them surviving the present appellants. Simultaneously, with the filing of the suit the plaintiffs filed an application for judgment upon admission. The learned Single Judge allowed the said application and passed a decree on December 11, 2002. The defendants challenged the said decree and ultimately succeeded before the Apex Court when the Special Leave Petition filed by the plaintiffs as against the order of setting aside of the decree by the Division Bench, got dismissed. The Apex Court passed the order of dismissal of the Special Leave Petition on March 30, 2007. The parties would agree, the judgment upon admission application was made on the principal amount claimed in the plaint barring a small amount of interest that would remain to be decided. In April 2007, the defendant No. 1 died. Defendant No. 2 died subsequently. On August 21, 2007, the death of the defendant No. 1 was recorded and his heirs were brought on record. The defendants thereafter made an application for dismissal of the suit inter alia on the ground, the plaintiffs did not take any step for service of the writ of summons. The learned Single Judge while recording the death of the defendant No. 1 preserved the right of substituted defendants to content, the suit was liable to be dismissed as the plaintiffs failed to serve the writ of summons. The defendants accordingly filed application for dismissal of the suit on August 23, 2007. The plaintiffs approached the learned Master and obtained an order of extension of time to lodge the writ of summons initially in September 2007 and thereafter on March 28, 2008 and then April 3, 2009. With the three extensions, the writ of summons was finally served upon the appellants in June 2009. The defendants upon coming to know of the application for extension, prayed for setting aside of the order of the learned Master. The learned Single Judge by an order dated March 25, 2010 set aside the order of the learned Master and at the same time extended the time to lodge the writ of summons. The writ of summons was thereafter lodged and served upon the defendants.
Being aggrieved, the defendants preferred the instant appeal.
We heard Mr. Joyjeet Ganguly, learned counsel appearing for the appellant and Mr. Aryak Datta, learned counsel appearing for the respondent.
Mr. Ganguly contended, once the time to lodge the writ of summons expired and the plaintiff did not take any step for revival of the said writ of summons, the suit was liable to be dismissed under Order 9Rule 5 of the Code of Civil Procedure. Mr. Ganguly would further contend, learned Master did not have any competence to extend the returnable date when writ of summons lapsed either due to nonlodging or not having the returnable date extended within the period of expiry. Once the writ of summons stood lapsed, the learned Master could not have passed any order to activate the suit that would liable to be dismissed under Order 9 Rule 5 of the Code of Civil Procedure. He relied on the following decisions of our Court:
1. Hindustan Motors Ltd. & Anr. Vs. National Insurance Co. Ltd. & Anr. reported in All India Reporter 2003 Calcutta page-41.
2. Shrikant Mantri & Ors. Vs. Radheshyam Chotia & Ors. Reported in (2006) Volume-III Calcutta Law Times page-230.
3. State Bank of India Vs. Tarit Applicance (P) Ltd. & Ors. reported in 1994 Volume-II Calcutta High Court Notes page-161.
4. East Bengal Steam Services Ltd. Vs. East Bengal Steam Services & Engg. Workers Co-operative Industrial Society Ltd. & Ors. reported in 2006 Volume-III Calcutta High Court Notes page-201.
5. Fort Gloster Industries Ltd. & Anr. Vs. Tatanagar Transport Corpn. & Ors. reported in 91 Calcutta Weekly Notes page-391.
6. Deepak Prakash & Ors. Vs. Jayant
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