Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF CALCUTTA
Ashim Kumar Banerjee and Arijit Banerjee, JJ.
NPR Finance Ltd. & Ors. - Appellants
Versus
Deepak Jhunjhunwala & Ors. - Respondent
APD No. 230 of 2010, CS No. 97 of 2003, APD No. 231 of 2010, CS No. 94 of 2003, APO No. 8 of 2011, CS No. 61 of 2004, APO No. 9 of 2011, CS No. 339 of 2004
Decided On : 30-4-2014

Advocates Appeared:
For the Appellants (in APD 230 of 2010 and APD 231 of 2010) :Abhrajit Mitra, Rajashree Kajaria and Soumabho Ghose, Advocates.
For the Appellants (in APO 8 of 2011 and APO 9 of 2011) :Shib Sadhan Das, Advocate.
For the Respondents (in APD 230 of 2010 and APD 231 of 2010):Surajit Nath Mitra, Asish Chakraborty and Arindam Mukharjee, Advocates.
For the Respondent No. 1 (in APO 8 of 2011 and APO 9 of 2011):Sakhya Sen and Rupak Ghose, Advocates.
For the Respondent No. 2 (in APO 8 of 2011 and APO 9 of 2011):Anuj Singh, Syed E. Hadu and Shaunak Sen Gupta, Advocates.

The court has discretion to dismiss a suit for non-service of summons, but such discretion must be exercised on sound judicial principles, considering factors such as the period of delay, the conduct of the plaintiff, and whether the defendant was aware of the suit through other means. The court should strive to adjudicate disputes on merits rather than dismiss them on technicalities.

Headnote:
CIVIL PROCEDURE - Delay in Service of Summons - Discretion of Court - Factors to Consider - Conduct of Plaintiff and Defendant - Object of Service - Knowledge of Suit through Interlocutory Proceedings - Prejudice to Defendant - Substantial Justice - Dismissal of Suit - Avoidance of Technicalities - Indolent Litigant - Limitation - Adjudication on Merits.
Fact of the Case:

Four appeals challenging the dismissal of suits due to inordinate delay in serving the writ of summons on the defendants. The plaintiffs had filed the suits but failed to take steps for issuance and service of summons for several years. The defendants applied for dismissal of the suits, which were allowed by the trial court.
Finding of the Court:

The court held that the trial court has discretion to dismiss a suit for non-service of summons, but such discretion must be exercised on sound judicial principles. Factors to be considered include the period of delay, the conduct of the plaintiff, and whether the defendant was aware of the suit through other means. The court should strive to adjudicate disputes on merits rather than dismiss them on technicalities.
Issues: 1. Whether the trial court erred in dismissing the suits for inordinate delay in serving the writ of summons? 2. Whether the court has discretion to dismiss a suit for non-service of summons? 3. What factors should be considered by the court in exercising its discretion?
Ratio Decidendi: 1. The court has discretion to dismiss a suit for non-service of summons, but such discretion must be exercised on sound judicial principles. 2. Factors to be considered by the court include: - the period of delay, - the conduct of the plaintiff, - whether the defendant was aware of the suit through other means, such as participation in interlocutory proceedings or a parallel proceeding. 3. The court should strive to adjudicate disputes on merits rather than dismiss them on technicalities.
Final Decision: The court set aside the trial court's orders dismissing the suits subject to the plaintiffs paying costs to the defendants. The plaintiffs were allowed to proceed with their suits by taking appropriate steps for issuance and service of the writ of summons.

JUDGMENT :

Arijit Banerjee, J.

These four appeals would raise a common question of law and have accordingly been heard analogously and are being disposed of by the foregoing judgment and order.

2. The common question of law that would arise is that whether in view of the relevant provisions of the Code of Civil Procedure, 1908 and the Original Side Rules of this Court, an inordinate delay on the part of the plaintiff in taking steps for issuance of a writ of summons would necessarily warrant dismissal of the suit. We propose to review the law on the subject and then apply the same to the facts of each appeal and dispose of the appeals accordingly.

3. Section 27 of the Code of Civil Procedure provides as follows:-

"Summons to defendants.- Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed."

4. In course of his argument, Learned Counsel for the respondent has also referred to Order 9, Rule 5 of the Code of Civil Procedure which provides as follows:-

"Dismissal of suit where plaintiff, after summons returned unserved, fails for three months to apply for fresh summons.- [(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 [one month] 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 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 thinks fit.]

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit."

5. The relevant provisions of the Original Side Rules of this Court are Rules 6 and 7 of Chapter VIII, which are set out hereunder:-

"Summons to be delivered to the Sheriff within 14 days.-Except as hereinafter provided every writ of summons shall be taken out and delivered to the Sheriff, for service within the local limits of the jurisdiction of this Court, or for transmission for service elsewhere. A writ of summons shall have annexed thereto a copy of the plaint and of every document, sued on, a copy of which is filed therewith. Unless an extension of time is obtained, it shall be taken out and delivered to the Sheriff within 14 days from the filing of the plaint or the date of the order of amendment. [Unless otherwise ordered, the writ of summons required to be served by registered post under the provision of Rule 19A Order 5 of C.P.C. shall be served in all cases by the Sheriff of Calcutta.]

Sheriff not to receive summons after time.- Unless otherwise ordered, no summons shall be received by the Sheriff for service or transmission, after the expiration of the days mentioned in Rules 6 and 8."

6. The aforesaid provisions have been considered by our Court as also by the Honble Apex Court in several cases which have been cited by Learned Counsel for the parties. Let us consider those cases one by one.

7. Mr. Abhrajit Mitra, learned Counsel for the appellants in APD No. 230 and 231 of 2010 first cited the decision in the case of Hindustan Motors Ltd. v. National Insurance Co. Ltd. and Ors., reported in (2009) 1 WBLR 1062. In that case the Learned Single Judge had dismissed the suit because of 15 years delay in serving the writ of summons on the defendant. The suit had been filed in 1987 and the writ of summons was served in 2002. However, a writ petition had been filed by the plaintiff in the suit in 1992 against the defendant-Insurance Company for cancellation of c

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Cases Referred (10)