The importance of proper service of summons and the authority of representation in legal proceedings.

Hon'ble Mr. Justice B.D. Agarwal

1. The plaintiff in Title Suit No. 5 of 2008 has filed this revision application under Article 227 of the Constitution of India so as to challenge the order dated 18.7.2012 passed by the learned Civil Judge, Karimganj, whereby the order of ex-parte hearing of the suit against the defendant No. 4 has been vacated and the said defendant has been allowed to file written statement in the suit. Heard Mr. P.K. Roy, Learned Counsel for the petitioner and Mr. D. Das, learned Sr. counsel appearing for the respondents No. 4 and 10, who have appeared by way of filing a caveat. In my considered opinion, notices and hearing of the remaining respondents at this stage is not necessary and the case is being decided at the motion stage itself.

2. Sri Roy, Learned Counsel for the petitioner submitted that the respondent/defendant No. 4, M/s Ganesh Plantations Pvt. Ltd had already appeared in the suit through a lawyer and no written statement was filed, despite taking adjournments. Suddenly, after more than four years of filing of the suit, the respondent No. 10(not a party in the suit) filed a petition under Section 151 of the Code of Civil Procedure representing himself as the Director-cum-Executive Officer of defendant No. 4 and prayed for allowing the said defendant to submit their written statement and to contest the suit. According to the Learned Counsel, the respondent No. 10 was not impleaded in the suit by name nor he had authority to file the objection since the defendant No. 4 was already represented by its Director.

3. Along with the revision application, the petitioner has submitted a copy of the "Vakalatnama" duly executed by a Director on behalf of the defendant No. 4 to show that one Sri Ranjan Roy, Advocate was appearing on behalf of the defendant No. 4. The Learned Counsel also submitted that the petition filed by the respondent No. 10 through a lawyer was also on the basis of an unsigned 'Vakalatnama' and, as such, the lawyer representing the respondent No. 10 had no authority to represent either the defendant No. 4 or his alleged attorney holder, i.e., respondent No. 10. Along with the revision application, a photocopy of the 'Vakalatnama' submitted by Sri A.R. Tapadar, advocate has also been filed, wherein there is no signature of any representative of the defendant No. 4. The Learned Counsel for the petitioner also submitted that the prayer to file written statement has been granted after the trial has begun and witnesses have been examined and cross-examined.

4. Per contra, Sri Das, learned Sr. counsel for the respondents No. 4 and 10 submitted that the aforesaid defendants have been allowed to file a written statement on the ground that the defendants were not served with any summon. Referring to Rule 62 of the Civil Court Rules and Orders of Gauhati High Court, the Learned Counsel submitted that the summons should be served through an officer of a court within whose jurisdiction the party resides and this mandatory provision was not followed. The Learned Counsel for the respondents produced a copy of the summon issued to the defendants No. 1, 2, 3 and 4 to buttress his submission that the summon of the defendant No. 4 was actually sent to Dehradun although the office of the defendant No. 4 was situated at Dibrugarh in Assam. The Learned Counsel submitted that the respondent No. 10 was competent enough to file the application on behalf of the defendant No. 4 since a general power of attorney was executed in his favour by one of the Directors of the company namely, Sri Nirmal Kr. Beria. Sri Das, learned Sr. counsel for the respondents No. 4 and 10 also produced a photo copy of the resolution taken by the company (Defendant No. 4) to show that the respondent No. 10 has already been inducted as Director of the company in its resolution dated 14.7.2012 and as such he was competent to file the petition.

5. The Learned Counsel also relied upon a judgment of this court rendered in the case of