Ashim Kumar Banerjee, J.@mdashBringing 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 SLP 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 SLP 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.
2. We heard Mr. Joyjeet Ganguly, learned counsel appearing for the appellant and Mr. Aryak Datta, learned counsel appearing for the respondent.
3. 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 9 Rule 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 non-lodging 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.
2.
3. State Bank of India Vs. Tarit Applicance (P) Ltd. & Ors. reported in 1994 (2) Cal. HCN 161.
5.
6. Deepak Prakash & Ors. Vs. Jayanta Kumar Bose & Ors. unreported judgment dated June 16, 2004.
7. Hindustan Motors Limited Vs. National Insurance Company Limited & Ors. unreported judgment dated January 30, 2009.
4. Since Mr. Datta raised plea of maintainability of the appeal at the initial stage, Mr. Ganguly cited four decisions to contend, the appeal was maintainable. The four decisions are as follows:
1.
2.
3.
4.
5. Mr. Aryak Datta, learned counsel appearing for the plaintiff/respondent contended, under Rule 6 and 7 of Chapter VIII of the Calcutta High Court Rules, Original Side, the suit could not be dismissed for non-filing of the writ of summons. The suit in the Original Side could only be dismissed for not taking steps, under Rule 35 of Chapter X that too, on the eventuality contemplated therein and not otherwise. He distinguished Order 9 Rule 5 of the CPC and contended, in case of a suit before the subordinate judiciary, the writ of summons was to be lodged simultaneously by filing of the suit and in case of non-service of writ of summons within the stipulated period, the plaintiff having the carriage of proceedings was obliged to take steps for service and consequently pray for extension of returnable date, having not done so, the suit was liable to be dismissed. In a suit in the Original Side of this Court, the writ of summons is withdrawn from the Filing Department after scrutiny and the same should be lodged with the Sheriff having a returnable date fixed by the Filing Department as per Rules. In the instant case, the writ of summons was not lodged at all. Hence, question of taking steps for service through the Sheriff or for extension as the case may be, would not arise. The suit could only be dismissed once it would come within the scope of Chapter X Rule 35.
6. We have considered the rival contentions. The defendants prayed for dismissal of the suit on the ground that the plaintiff had failed to take steps in the suit by not serving writ of summons within the returnable date as valuable right accrued in their favour. By extending the returnable date the suit would get automatically revived that would take away the right of the defendants that accrued in their favour. To maintain an appeal of like nature one has to come within the scope of Section 100 of the CPC or under the High Court Rules, Original Side. CPC did not prescribe any appeal from an order of refusal to pass an order of dismissal under Order 9 Rule 5. However, under clause 15 of the Letters Patent so contained in the Rules of this Court, if a party feels aggrieved by an order, he would automatically be entitled to maintain an appeal. The Apex Court recognized inherent right under clause 15 in the case of Shah Babulal Khimji (supra), such decision was followed in the case of Liverpool & London (supra). In Khimji (supra), the Apex Court summarized the grievances that would attract an appeal under the Letters Patent. In paragraph-120 Their Lordships contemplated fifteen eventualities where clause 15 appeal would be maintainable. Paragraph-120 be relevant herein is quoted below :
Thus, these are some of the principles which might guide a Division Bench in deciding whether an order passed by the trial Judge amounts to a judgment within the meaning of the Letters Patent. We might, however, at the risk of repetition give illustrations of interlocutory orders which may be treated as judgments :
(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant.
(2) An order rejecting the plaint.
(3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure.
(4) An order rescinding leave of the trial Judge granted by him under Cl. 12 of the Letters patent.
(5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice u/s 80, bar against competency of the suit against the defendant even though the suit is kept alive.
(6) An order rejecting an application for a judgment on admission under O. 12 Rule 6.
(7) An order refusing to add necessary parties in a suit u/s 92 of the Code of Civil Procedure.
(8) An order varying or amending a decree.
(9) An order refusing leave to sue in forma pauperis.
(10) An order granting review.
(11) An order allowing withdrawal of the suit with liberty to file a fresh one.
(12) An order holding that the defendants are not agriculturists within the meaning of the special law.
(13) An order staying or refusing to stay a suit u/s 10 of the Code of Civil Procedure.
(14) An order granting or refusing to stay execution of the decree.
(15) An order deciding payment of court-fees against the plaintiff.
7. Such eventualities so contemplated were however not exhaustive. If we read the said decision as a whole, we would find the principal factor that weighed the Apex Court in the said judgment was, the order impugned should have passed out a test as to whether it reached finality on an issue or a right of a party. If the answer is positive, the appeal would be maintainable.
8. According to the defendants, a suit of 2001 was not even ready in 2007 as the writ of summons was not served, per se suit was liable to be dismissed as valuable right accrued in favour of the defendant. To say so, an order reviving the said suit would definitely be available for judicial scrutiny of Court of Appeal. We hold this appeal maintainable.
9. Coming back to the factual matrix, we would rather fall back upon the Division Bench decision on the issue in the case of Hindustan Motors Ltd. D.B. (supra). In the said decision we considered the earlier decisions and ultimately came to the conclusion that the Court would have discretion to consider as to whether the plaintiffs were prevented by sufficient cause from taking any step in the suit by serving writ of summons. If the causes are sufficient, they would be entitled to revive the suit or continue with the suit. In short, the Court would have still discretion to examine the conduct of the plaintiff as well as the defendant before allowing the suit to be dismissed in limine. When a litigant approaches the Court for a substantive relief, the Court must dispose of it by adjudicating the controversy on merit that could never be done without affording opportunity to the defendant to appear and defend the said action. If the defendant is not put on notice, the action is liable to be dismissed in limine without any adjudication on merit. Still there would be a discretion vested upon the Court to examine as to what prevented the plaintiff to serve the notice upon the defendant. There could not be any automatic fiction that would make the suit infructuous in absence of writ of summons not being served within the returnable date. Our discretion would still be available, otherwise it would be travesty of justice to play in the hands of technicalities. To rely on a fiction, such proposition would be ridiculous. In the case of Hindustan Motors Ltd. D.B. (supra) we considered Order 9 Rule 5 of the CPC and made a clear distinction with our Rules in the Original Side. Relevant paragraph is quoted below :
Order 9 Rule 5 is a provision where a suit is liable to be dismissed in case the plaintiff does not take any step to serve the writ of summons on the defendant when it comes back unserved meaning thereby it is second stage of attempt to serve the writ of summons. Our High Court Rules do not specifically contemplate a situation where the court is to dismiss the suit when no step at all is taken for service of the writ of summons. We are in agreement with Mr. Mitra that Order 9 Rule 5 may not be strictly applicable in the instant case. However, there is a situation worst than the situation contemplated in Order 9 Rule 5. Hence, it would be a proposition that the suit could be dismissed in a situation contemplated under Order 9 Rule 5 and could not be dismissed if the situation is worst than what was contemplated in the said provision. Such proposition would be ridiculous. Hence, following the inherent power we are of the view that the Court can dismiss a suit if no step is taken by the plaintiff having the carriage of proceeding. To that extent we fully agree with His Lordship that the Court has inherent power to dismiss a suit in case steps are not taken in the suit by the plaintiff.
10. We have considered the Apex Court decision in the case of
Question now remains, if the Court can dismiss a suit for latches on the part of the plaintiff in taking steps in the suit can the Court condone such latches being satisfied with the cause which prevented the plaintiff from taking any such steps ? Our answer would be "yes". In this regard let us consider the latest Apex Court decision in the case of Salem Bar Association (supra). In the said case the Apex Court considered the provision of Order 7 Rule 11 Clause (e) and (f). Such provision was incorporated enabling the Court to reject a plaint when it fails to comply with the provisions of Order 7 Rule 9. The Apex Court observed that such was the enabling provision and the Court should ordinarily give an opportunity for rectifying such defect meaning thereby, for procedural latches the Court should not dismiss the suit as a matter of course without giving an opportunity for curing the defect. In a recent decision of the Apex Court in the case of Uday Shankar Triyar (supra) the Apex Court considered the provision of Order 41 Rule 1 which obligates the appellant''s advocate to sign the Memorandum. The Apex Court observed that "non-compliance did not entail automatic rejection without giving any opportunity to rectify such defect.
11. Hence, in our view, although the respondents were at fault in having the writ of summons served within the stipulated period still there would be discretion that we would have to exercise judiciously to find out whether the plaintiff would still deserve sympathy of this Court coupled with an order of revival of the suit particularly when the writ of summons was ultimately served.
12. Coming back to the factual matrix involved in the present appeal we would find, simultaneously on filing of the suit, the suit got decreed in favour of the plaintiff to a substantial extent. After protracted litigation the suit got ultimately revived when decree was set aside that happened in 2007. Contemporaneous action was taken by the plaintiffs for service of summons. It is true, the defendants cautioned the plaintiffs by taking earlier action. However, the period upto the dismissal of the Apex Court proceeding could not be taken into consideration as both the parties were litigating.
13. The matter may be viewed from another angle. Even if we assume, Order 9 Rule 5 or the principle underlying thereto would still be applicable, we would find, the said provision being enacted principally to stop frivolous suit or suits initiated by callous plaintiffs who unnecessarily burden the Court record with infructuous proceedings. In the present case, simultaneously on filing of the suit the defendants were put on notice by service of the application for judgment upon admission coupled with service of the copy of the plaint. Had the decree passed on the said application not been set aside in 2007, the defendants would have to adhere to the decree. In any event they got opportunity to defend the proceeding at every stage and ultimately became successful in getting the judgment upon admission application dismissed coupled with recall of the decree and thereby getting opportunity to defend the suit. We do not find any scope of interference when the learned Single Judge directed contested hearing of the suit. The learned Single Judge heard the parties at length, considered the cases cited by the parties and ultimately extended the returnable date upon being satisfied with the explanation offered by the plaintiffs. Such exercise of discretion by the learned Single Judge cannot be said to be perverse and thus would not deserve any interference by this Court.
14. The appeal fails and is hereby dismissed without any order as to costs. Urgent certified copy of this judgment, if applied for, be given to the parties on their usual undertaking.
Shukla Kabir Sinha, J.
I agree.
