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IN THE HIGH COURT OF GAUHATI
IQBAL AHMED ANSARI, J.
Sreenivas Basudev – Appellant
Vs.
Vineet Kumar Kothari – Respondent
WP(C) No. 8457 of 2005
Decided On: 17.03.2006
SERVICE OF SUMMONS - [KEYWORD] - ORDER V, RULES 1 AND 2 - [SUBJECT] - Mere service of summons on a defendant would not make the period of 90 days, as envisaged under Order VIII, Rule 1, start running. When a period does not begin to run, the question of the period having come to an end does not arise at all. Hence, when the service of summons is not accompanied by a copy of the plaint, the period of 90 days, as contemplated under Order VIII, Rule 1, would not begin to run.
Fact of the Case:
Plaintiff instituted a suit for ejectment of the defendant from the suit premises and also for realization of rent. Summons were issued on 24.4.2003, fixing 14.5.2003 for service report. Summons were served on the defendant on 18.4.2003. However, as the service report had not been received by the Court, the Court fixed 9.7.2003 as the date for receipt of the service report. On 9.7.2003, the defendant appeared in the suit and filed a petition stating to the effect, inter alia, that it had not received copies of the plaint and also the documents, relied upon by the plaintiff, and that on account of non-furnishing of the copies aforementioned, the defendant had not been able to file its written statement. By this petition, the defendant sought for directions to be given to the plaintiff to furnish the copies aforementioned to the defendant and also to fix a date for filing of written statement. On the petition, so made, the learned trial Court passed an order, on 9.7.2003 itself, directing the suit to be fixed on 30.7.2003 for supply of copies of the plaint and documents to the defendant and also for filing of written statement. In course of time, when the suit came up, on 9.9.2003, the defendant filed a petition stating to the effect, inter alia, that despite directions having been given to the plaintiff, the plaintiff had not supplied copies of the documents to the defendant and that on account of non-furnishing of the copies of the documents, written statement could not be prepared and filed. The defendant, accordingly, sought for necessary directions. The learned trial Court, then, passed an order, on 9.9.2003 itself, allowing time for filing of written statement and fixed 31.10.2003 for filing of written statement. The defendant filed its written statement on 23.2.2004 and when the suit came up on 5.4.2004, it was submitted, on behalf of the plaintiff, that the written statement, having been filed beyond the period of 90 days from the date of furnishing of the copies, written statement was not acceptable in law. The learned trial Court acceded to the submissions so made on behalf of the plaintiff and refused to accept the written statement and, further, directed that the suit be fixed for ex parte hearing on 10.5.2004.
Finding of the Court:
The Court held that the service of summons on a defendant would not make the period of 90 days, as envisaged under Order VIII, Rule 1, start running. When a period does not begin to run, the question of the period having come to an end does not arise at all. Hence, when the service of summons is not accompanied by a copy of the plaint, the period of 90 days, as contemplated under Order VIII, Rule 1, would not begin to run.
Issues: Whether mere service of summons on a defendant would make the period of 90 days, as envisaged under Order VIII, Rule 1, start running.
Ratio Decidendi: Order V, Rules 1 and 2 of the Code of Civil Procedure, 1908 provide that a summons shall be accompanied by a copy of the plaint. When this requirement is read, in the light of the provisions of Order VIII, Rule 1 or even Order VIII, Rule 10, it clearly emerges that though Order VIII, Rule 1 requires that the defendant shall, within 30 days from the date of service of summons on him, present a written statement of his defence, such service of summons would obviously include not merely service of summons on the defendant, but also service of a copy of the plaint.
Final Decision: The impugned orders, dated 5.4.2004 and 26.9.2004, are hereby set aside and quashed. The learned trial Court is hereby directed to pass, in the light of the observations made in the preceding paragraphs of this judgment, appropriate order(s) on the written statement filed by the defendant-petitioner.
I.A. Ansari, J.
1. Can service of summons on a defendant be regarded as complete if a copy of the plaint is not delivered to him along with the summons? Is a plaintiff bound to submit to the court copies of documents? If so, when is he so bound? Does the court have the power to direct a plaintiff to furnish to a defendant copy of a document? If so, when and under what circumstances such a direction can be given? If a plaintiff does not furnish to a defendant copy of a document despite directions given, in this regard, to the plaintiff by the court, can, while computing the a period of 90 days for filing of written statement, as envisaged under Order VIII, Rule 1 of the Civil Procedure Code, the period during which the copy of the document remained unfurnished to the defendant be excluded? If a plaintiff does not furnish to a defendant copy of a document despite directions given, in this regard, to the plaintiff by a court, can the court insist that it is the duty of the defendant to file written statement within the extended period of 90 days from the date of service of summons? These are some of the intricate questions, which the present writ petition has thrown up for determination in this writ petition.
2. The material facts leading to the present writ petition may, in brief, be set out as follows:
(i) The plaintiff-respondent herein instituted Title Suit No. 103/2003, in the Court of the learned Civil Judge (Senior Division) No. 1, Guwahati, seeking ejectment of the defendant-petitioner herein from the suit premises and also for realization of rent, the plaintiffs case being, briefly stated, thus: The plaintiff had, vide a registered sale deed, dated 23.8.2002, purchased the suit property, which is a multi-storied building, from the erstwhile owner thereof and became absolute owner of the suit property. The ground floor of the said building and some other parts thereof have had been in the possession of the defendant as a tenant, the defendant having entered into an agreement of tenancy, in this regard, with the erstwhile owner thereof undertaking to pay Rs. 1,895 as rent, in advance, within the first week of each month. Having purchased the suit property, as stated hereinbefore, the plaintiff as well as the vendor, who had sold the suit property to the plaintiff, informed, vide their letters, dated 5.12.2002, the defendant about the purchase of the suit property by the plaintiff and requested the defendant to attorn to the plaintiff as the land-owner and make payment of rents to the plaintiff accordingly; but the defendant has not paid the rents to the plaintiff since the month of December 2002, and has become a defaulter. The defendant is, therefore, liable to be evicted from the suit premises and also to pay, inter alia, the arrear rents.
(ii) On institution of the suit aforementioned, summons were issued by the Court, on 24.4.2003, fixing 14.5.2003 for service report. The summons were served on the defendant on 18.4.2003. However, as the service report had not been received by the Court, the Court fixed 9.7.2003 as the date for receipt of the service report. On 9.7.2003, the defendant appeared in the suit and filed a petition stating to the effect, inter alia, that it had not received copies of the plaint and also the documents, relied upon by the plaintiff, and that on account of non-furnishing of the copies aforementioned, the defendant had not been able to file its written statement. By this petition, the defendant sought for directions to be given to the plaintiff to furnish the copies aforementioned to the defendant and also to fix a date for filing of written statement. On the petition, so made, the learned trial Court passed an order, on 9.7.2003 itself, directing the suit to be fixed on 30.7.2003 for supply of copies of the plaint and documents to the defendant and also for filing of written statement. In course of time, when the suit came up, on 9.9.2003, the defendant filed a petition stating to the effec
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