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2014 Supreme(Cal) 835
IN THE HIGH COURT OF CALCUTTA
Subrata Talukdar, J.
Amalesh Mondal & Anr. - Petitioners
Versus
Animesh Mandal & Ors. - Opposite Parties
CO 2107 of 2011
Decided On : 19-12-2014
For the Petitioners: Jiban Ratan Chatterjee and Dipankar Aditya
For the Opposite Parties : Joydip Kar, Saurav Sen, Saurav Sengupta and A.M. Saha
The court held that the provisions of Order 8 Rule 1 CPC are not mandatory in character and that the court should not ordinarily deny a litigant the opportunity to contest in an adversarial legal process. The court should also not be rendered remediless to repair an extreme situation for the ends of justice.
Headnote:
CONDONATION OF DELAY - WRITTEN STATEMENT - SERVICE OF SUMMONS - INTERPRETATION OF ORDER 8 RULE 1 CPC - FAMILY DISPUTE OVER TRADEMARK - EXCEPTIONAL CIRCUMSTANCES - DELAY IN FILING WRITTEN STATEMENT EXCUSED - WRITTEN STATEMENT ACCEPTED SUBJECT TO PAYMENT OF COSTS.
Fact of the Case:
Defendants in a suit for declaration, permanent injunction, and damages challenged the order of the trial court refusing to condone the delay in filing their written statement. The trial court held that the defendants had received the summons on 23rd November 2009 and should have filed their written statement within the prescribed period. The defendants claimed that they received the summons in June 2010 and that their delay was due to exceptional circumstances, including the inaction of their advocate.
Finding of the Court:
The court held that the trial court erred in not accepting the defendants' explanation for the delay in filing their written statement. The court noted that the trial court had itself recorded on 9th March 2010 that the service return and acknowledgment due had not yet returned after service, indicating that the summons had not been served on the defendants as claimed by the plaintiffs. The court also noted that the defendants had filed their written statement on the next date fixed by the trial court, i.e., 27th August 2010, and that the plaintiffs had not challenged the acceptance of the written statement before a higher forum.
Issues: 1. Whether the defendants had received the summons on 23rd November 2009 as claimed by the plaintiffs. 2. Whether the defendants had made out exceptional circumstances justifying the delay in filing their written statement. 3. Whether the trial court erred in refusing to condone the delay in filing the written statement.
Ratio Decidendi: 1. The court held that the trial court erred in relying on the postal receipt to conclude that the summons had been served on the defendants on 23rd November 2009, as the trial court itself had recorded on 9th March 2010 that the service return and acknowledgment due had not yet returned after service. 2. The court held that the defendants had made out exceptional circumstances justifying the delay in filing their written statement, including the inaction of their advocate and the confusion caused by the trial court's own order of 9th March 2010. 3. The court held that the trial court erred in refusing to condone the delay in filing the written statement, as the defendants had filed their written statement on the next date fixed by the trial court and the plaintiffs had not challenged the acceptance of the written statement before a higher forum.
Final Decision: The court set aside the order of the trial court and directed the trial court to accept the written statement filed on behalf of the defendants subject to payment of costs of Rs. 5000/- in favor of the plaintiffs.
Subrata Talukdar, J.
In this application under Article 227 of the Constitution of India the petitioners have challenged the Order No. 17 dated 10th June, 2011 passed by the Ld. 10th Bench, City Civil Court, Calcutta in Title Suit No. 5659 of 2009. By the said impugned order the Ld. Trial Court was pleased to hold as follows:-
(a) That the present petitioners, who are the defendants in Title Suit No. 5659 of 2009 filed an application on 15th December, 2010 praying, inter alia for condonation of delay in filing their written statement. Against the said application the present Opposite Parties, who are plaintiffs in Title Suit No. 5659 of 2009 filed their objection.
(b) The Ld. Trial Court observed that the suit was filed by the OP/plaintiff on 6th November, 2009 for declaration, permanent injunction and consequential damages. The Plaintiff no.1 sought a declaration that he is alone entitled to use the trade mark of Ray & Martin as well as 'Prosnobichitra', 'Uttarbichitra' and 'Bichitra' in respect of such business being carried out through his authorised persons/licensed users in relation to teaching manuals, books, channels, question papers, student guide books etc.
The Plaintiff no.1 also sought a declaration and injunction that the defendants shall have no right to use such trade mark.
(c) Upon institution of the suit on 20th November, 2009 summons were issued upon the defendants. The records show that the summons were sent vide postal receipt no. 6369 on 20th November, 2009 by the Kolkata General Post Office. The summons were delivered on 23rd November, 2009.
2. However, on behalf of the present petitioners/defendants it has been submitted that towards the end of June, 2010 the defendant no.1 received the copy of the summons of the suit along with the copy of the plaint and it was written on the summons that the date fixed for appearance was 9th March, 2010. The said summons were marked as Annexure B to the application filed by the defendants for condonation of delay in filing their written statement.
(d) Therefore, in the view of the Ld. Trial Court it was clear that on 20th November, 2009 the summons in the suit were issued upon the defendant no.1 requiring the defendant no.1 to appear in Court on and by 9th March, 2010 and the defendants admittedly received such summons on 23rd November, 2009. The Ld. Trial Court also took notice of the decision of the Hon'ble Apex Court in Kailash v. Nanhku & Ors. reported in (2005) 4 SCC 480 which was relied upon by the defendants on the point that the provisions of Order 8, Rule 1 CPC are directory and not mandatory. Relying on Kailash (supra) the defendants prayed for an opportunity to contest the suit by filing their written statement. The defendants also relied upon a decision of this Hon'ble Court in Dilip Tarafdar v. Manika reported (2006) 1 CLJ 202 on the point that in the event time is extended for filing written statement, the Court is required to record reasons for the same.
(e) The Ld. Trial Court then took the view that in the light of the decision of the Hon'ble Apex Court in Kailash v. Nanhku (supra), in exceptional cases it is possible for the Court to extend the time for filing written statement by examining in the facts of each case whether such exceptional circumstances exist which would justify the failure of the defendants to file written statement within the prescribed period.
3. However, in the further view of the Ld. Trial Court in the facts of the present case it does not appear that the defendants have been able to make out an exceptional case justifying extension of time to file written statement.
(f) Discussing the facts on record, the Ld. Trial Court found that the defendants received the summons of the suit on 23rd November, 2009 and soon thereafter they ought to have taken steps to draft the written statement without waiting for any other date to cause their appearance in court. The Ld. Trial Court therefore held the view that there appear obvious laches on
