1. Heard Mr. R. Hussain, learned counsel appearing for the petitionerdefendant No. 1 and 2 as well as Mr. T. Islam, learned CGSC appearing for the respondents/plaintiffs.
2. This application under section 115 read with article 227 of the Constitution of India is directed against the impugned order dated 13.12.2006 passed in Misc.(J) Case No. 165/06 by the Civil Judge (Sr. Divn.) No. 2, Guwahati rejecting the application filed by the present petitioner, i.e., defendant Nos. 1 and 2 for allowing them to file written statement in Money suit No. 28/03. It is stated that the said money suit No. 28/03 had been transferred in the court of Civil Judge (Sr. Divn.) No. 2, Guwahati and it had been registered as Money Suit No. 125/06. The Money Suit No. 28 of 03/125 of 06 was filed by the respondentplaintiff Union of India represented by the Chief Engineer, Project Vartak, C/o. 99 APO and the Officer Commanding 519 SS & TC (GREF) against the petitionerdefendant No. 1, M/s. Subansiri Trade & Agencies and the petitionerdefendant No. 2 Sri Kommi Riba son of Shri J.R. Riba and the profomna respondentdefendant No. 2 Shri Bhagchand Jain. The learned counsel appearing for the petitioner submits that the summons of the money suit No. 28 of 03/125 of 06 was not served to the petitionerdefendant No. 2 Shri Kommi Riba. He also by referring to the order 5, rule 11 of the CPC submits that save and otherwise provided, where there are more defendants than one, service of the summons shall be made on each defendant. In the instant case, i.e. in the money suit No. 28 of 03/125 of 06 as there are as many as 3 defendants including the present petitioner, the summons is required to be served upon each of the defendants, i.e., the present petitioners and the proforma respondent. The learned counsel appearing for the petitioners submits that there is no material on the record of the money suit No. 28 of 03/125 of 06 to show that summons to the present petitionerdefendant No. 2 had been properly served in compliance with the provision of section 28 of the CPC inasmuch as the present petitionerdefendant No. 2 is residing another State, i.e., Arunachal Pradesh and the money suit was filed in the State of Assam.
3. Order 8, rule 1 of the CPC clearly stated that the defendant shall file written statement within 30 days from the date of service of summons to him. Further according to the proviso of order 8, rule 1 of the CPC where the defendant failed to file written statement within a period of 30 days he will be allowed to file on such other day as may be specified by the learned court for reasons recorded in writing, but which shall not be later than 90 days from the date of service. In the present money suit No. 28 of 03/125 of 06, according to the learned counsel appearing for the petitionerdefendant, since the summons to the petitionerdefendant No. 2 had not been properly served time limitation for filing the written statement under order VIII, rule 1 is not applicable to the petitionerdefendant No. 2 inasmuch as 30 days is to be commenced from the date of service of summons to the defendant.
4. The respondent No. 1 also filed affidavit in opposition in the present petition. In para No. 4 of the affidavit in opposition, it is stated that on 28.11.2003 summons was not served upon the defendants and therefore the learned Court fixed 20.1.2004 for report. Since the summon was not served upon the defendants, same had been returned unserved. The learned counsel for the plaintiff filed a petition, i.e., petition No. 109/04 for taking fresh steps for service of summons to the defendants, i.e., present petitioner and proforma respondent. On 23.2.2004 the brother of the present defendant No. 2 filed petition being petition No. 318/04 dated 23.2.2004 stating that his brother, i.e., petitionerdefendant No. 2 is residing at New Delhi, accordingly learned trial court directed the respondentplaintiff to take fresh steps for service of summons to the defendants fixing 22.4.2004 for appearance and filing of the written statement of the defendants. The learned counsel appearing for the petitioner submits that in pursuance of the order of the trial court dated 23.2.2004 no fresh steps was taken for service of summons to defendant No. 2. To the contra the learned CGSC appearing for respondentplaintiff submits that on 22.4.2004 the proforma defendant appeared and filed a petition being 432 dated 11.3.2004 for referring the suit to arbitrators. As discussed above since the petitionerdefendants had been made as the defendants in the money suit No. 285 of 03/125 of 06 summons are required to be served to them in compliance with order 5, rule 11 of the CPC and the section 28 of the CPC even if the proforma defendant who alleged to be power of attorney holder of the petitionerdefendant No. 2 appeared before the court.
5. The learned trial court by passing the impugned order dated 6.12.2004 had rejected the prayer of the petitionerdefendant Nod. 1 and 2 to file written statement as the defendants are not filing the written statement within the time mentioned in order 8, rule 1 of the CPC. This court is of the considered view that the period of 30 days for filing the written statement as per provision of order 8, rule 1 of the CPC will be counted from the date of service of summons to the concerned defendant. But in the instant case as summons to the petitionerdefendant No. 2 had never been served, the period of 30 days for filing the written statement as per provision of order 1, rule 8 is not applicable to the petitionerdefendant No. 2. Over and above the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India (AIR 2005 SC 3353) bad discussed the provision of order 1, rule 8 of the CPC and held that:
"21. The use of the word ''shall'' in order VIII, rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and it design and context in which it is enacted. The use of the word ''shall'' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred, ''the rules or procedure are hand maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice."
6. It is also well settled that revisional power of this court under section 115 of the CPC against the interlocutory order had been circumscribed by the CPC amendment Act, 46 of 1999. The Apex Court in Surya Deu Rai v. Rain Chander Rai and Others (2003) 6 SCO 675 held that this court can exercise the revisional power against the interlocutory order if it cause any injustice to party against whom the interlocutory order is posted.
7. In the present case, taking into consideration of the ratio laid down by the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India and Surya Deu Rai v. Ram Chander Rai and Others (supra) and also taking into consideration of the facts and circumstances of the case, this court is of the considered view that since the summons to the plaintiffdefendant No. 2 had not been properly served there is no question of rejecting the prayer of the petitionerdefendant for filing written statement by taking recourse to provision under order 8, rule 1 of the CPC which will certainly cause injustice to the petitionerdefendant No. 2. Over and above, the limitation for Filing the written statement provided under order 8, rule 1 of the CPC shall also not applicable to the petitionerdefendant No. 2 in the peculiar facts and circumstances of the case. This court is of the considered view that it would be just and proper to allow the petitionerdefendant No. 2 to file the written statement in Money Suit No. 28 of 03/125 of 06 for the ends of justice.
8. Accordingly the impugned order dated 6.12.2004 is hereby set aside and the present revision petition is allowed, ''the petitionerdefendant No. 2 is allowed to file written statement in the money suit.
