Calcutta High Court
Sharmila Shetty & Anr vs Hemen Barooah Benevolent & Family Trust ... on 11 March, 2024
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No. GA 8 of 2022
In
CS 175 of 2014
Sharmila Shetty & Anr.
Versus
Hemen Barooah Benevolent & Family Trust & Ors.
Mr. Jishnu Saha, Sr. Adv.
Mr. Priyankar Saha
Mr. Ishaan Saha
Mr. Paritosh Sinha
Mr. Joydeep Roy
... For the plaintiffs.
Mr. Ratnanko Banerji, Sr. Adv
Mr. D.N. Sharma
Mr. Anunoy Basu
... For the defendant nos. 1 & 2.
Hearing Concluded On : 19.02.2024
Judgment on : 11.03.2024
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Krishna Rao, J.:
1. The instant application has been filed by the plaintiff No.1, inter alia, seeking for recalling of the order dated 20th May, 2022 passed by this Hon'ble Court, wherein the Court has dismissed the suit along with its connected applications.
2. The Plaintiffs have instituted a suit being C.S. No. 175 of 2014 on or about 8th day of May, 2014 praying for the following reliefs:
a) Declaration that the purported amendments of the Deed of Trust dated 5th April, 2011, by the deeds dated 21st November, 2011, 2nd November, 2012 and 8th February, 2013 are wrongful, and illegal and are consequently non-est and of no effect at all;
b) Declaration that the provisions of Clause 7.1 and 9.6 of the Deed of Trust dated 5th April, 2011 are contrary to law and are as null and void and of no effect or consequence whatsoever;
c) Declaration that the plaintiff No.1 is a trustee of the HBBFT and that her purported removal as trustee thereof is wrongful, illegal, null and void and of no effect or consequence whatsoever;
d) Declaration that the plaintiffs are beneficiaries of HBBFT and that their purported removal as beneficiaries of the said trust is wrongful, illegal, null and void and of no effect or consequence whatsoever;e) Declaration that the defendant Nos. 3 and 4
have not been validly appointed as and are not trustees of HBBFT and consequently cannot act as such;
f) Delivery up and cancellation of the alleged amendment deeds dated 21st November, 2011, 2nd November, 2012 and 8th February, 3 2013 forming Annexure "B" "C" and "D" to the plaint;
g) Decree for perpetual injunction restraining the defendant Nos.3 and 4 from representing or holding themselves out to be trustees of HBBFT or from acting as such;
h) Declaration that the appointment of the defendant No.5 as advisor of HBBFT is wrongful, illegal, null and void and of no effect or consequence whatsoever;
i) Decree for perpetual injunction restraining the defendant no.5 form representing or holding himself out to be the advisor of HBBFT or form acting as such;
j) Declaration that the purported amendment of the provisions of the Deed of Trust dated 5th April, 2011 providing for appointment of minimum of 4 trustees in place and stead of the originally stipulated minimum 7 of trustees is wrongful and bad in law;
k) Declaration that all acts done by any Board of HBBFT comprised of less than 7 trustees is bad in law and non-est;
l) Declaration that after the death of Hemendra Prasad Barooah there was in any event no Board of Trustees any event no Board of Trustees of HBBFT and all acts done by the defendant Nos.2 to 4 purporting to represent themselves as the Board of the HBBFT are wrongful, invalid and non-est;
m) Decree for perpetual injunction restraining the defendant No.2 or any of the purported trustees of HBBFT including the defendant Nos.3 and 4 from voting on the strength of the said 5.09% shareholding of HBBFT in B&A Limited or from otherwise relying on the said shares or exercising any right in respect thereof also all past voting to be declared null and void;
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n) Decree for perpetual injunction restraining the defendant No.2 or any of the purported trustees of HBBFT including the defendant Nos.3 and 4 from in any manner dealing with any property of the Trust including any share of B&A Limited; Kaziranga Golf Club Private Limited; Hacienda Properties Private Limited; Heritage North East Properties Private Limited and Barooahs & Associates Private Limited;
o) Decree directing the removal of the defendant No.2 as trustee of HBBFT;
p) Decree directing the reconstitution of the Board of Trustees of HBBFT with the plaintiff No.1' as a trustee and the appointment of six fit and proper independent trustees
q) Receiver;
r) Injunction;
s) Costs;
t) Further or other reliefs to which the plaintiffs may be entitled.
3. The suit was filed in the year 2014 and on 8th May, 2014, the plaint was admitted subject to scrutiny by the department. On scrutiny of the plaint altogether eight defects were pointed out by the department but the plaintiffs have not taken any steps to cure the defects. At the instance of the department, the suit was listed before this Court on 23rd December, 2021 but none appeared on behalf of the plaintiffs and on perusal of the report, this Court permitted the plaintiffs to cure defects subject to payment of cost of Rs.1 lakh to be payable to the West Bengal State Legal Services Authority within two weeks from the date of order. On the prayer of the plaintiffs, time to comply with the order dated 23rd December, 2021 was extended and only on 1st 5 February, 2022, the plaintiffs have paid the cost. Even after depositing the cost and further extension of time, the plaintiffs did not completely cured the defects. The matter was again taken up for hearing on 20th May, 2022 and on the said date, again the Learned Counsel for the plaintiffs prayed for time to cure the defects in the plaint. The Counsel for the defendant raised objection to the submissions made by the Counsel for the plaintiffs and after hearing the parties, this Court has dismissed the suit.
4. Mr. Jishnu Saha, Learned Senior Advocate representing the plaintiffs submits that the plaintiffs had appointed M/s. Victor Mosses and Co., Advocates, Kolkata to conduct all the cases which are pending between the Plaintiffs and the Defendants, which apparently also includes cases at Assam. Sometimes in the month of January, 2020, the plaintiffs expressed their desire to change their Advocates and had appointed Mr. Meghajit Mukherjee after obtaining a "No Objection"
from M/s. Victor Mosses & Co. Advocates. In or around January, 2022, again, the Plaintiff expressed their desire to change its Advocate and obtained change from Mr. Meghajit Mukherjee on and on or around second week of February, 2022, appointed M/s. Sinha & Co to look into the legal affairs of the plaintiffs.
5. Mr. Saha submitted that the plaintiff were in extreme shock and surprise when they came to know about the order dated 23rd December, 2021, wherein this Court, had granted leave to the plaintiffs to remove the defects in the suit as indicated by the 6 department upon payment of costs of Rs. 1 lakh within two weeks from the date of the order and the matter was made returnable on 21st January, 2022, on 21st January, 2022, the Advocate appearing on behalf of the plaintiffs sought for an extension of time and the same was not opposed by the defendants. Thereafter the matter was made returnable on 14th February, 2022. He submits that the plaintiff had duly paid the costs and it was duly acknowledged by the State Legal Services Authority on 1st February, 2022. Therefore the petitioner becomes entitled to take steps for issuance of Writ of Summons on the defendants in the suit.
6. Mr. Saha submitted that the plaintiffs were of the bona fide belief that the Advocates engaged by them would be taking all necessary procedural and steps in the various matters pending between the parties, however the sudden demise of the Father-In-Law of the Plaintiff No.1, on 17th September, 2017, took an immense physiological and emotional toll on the Plaintiff No.1 and her family, prior to this the interlocutory applications in the various proceedings were being contested by the plaintiffs on merit of the cases. He submits that due to the sudden death of the Father-In-Law of the Plaintiff no.1, Late Dr. K.R. Shetty, also triggered acute financial and deep management issues in the very reputed Hospital namely 'Cumballa Hill Hospital and Heart Institute Mumbai', of which the plaintiff no.1's Father-In-Law was in management and her husband was a trustee.
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7. Mr. Saha submits that since all the interlocutory proceedings in the instant suit as well as in other matters were duly proceeded and were highly contested, the plaintiffs entrusted and relied much heavily on their erstwhile Advocates to take steps. However, it ultimately transpired that no steps whatsoever was at all taken in this regard and it is a settled law that a litigant cannot be made to suffer for laches of their advocates.
8. Mr. Saha submitted that although the suit was filed on 2014, the plaintiff had relied upon its erstwhile Advocates regarding the legal processes to be done and also to cure the defects but needless to say that the plaintiffs are aggrieved by the irresponsible behavior on the end of the erstwhile Advocates.
9. The plaintiff immediately after the order dated 20th May, 2022, instructed its Advocate-on-record to take appropriate steps but due to intervening summer vacations from 20th May, 2022 to 5th June 2022 no effective steps could be taken for restoration of the suit and for recalling of the order dated 20th May, 2022.
10. Thereafter the Advocate-on-record of the plaintiffs was also not in Kolkata until 10th June, 2022 and it is only after his coming to Kolkata, necessary conferences were held with the Learned Counsel on 13th June, 2022 and steps for drafting of necessary application was taken and thereafter another conference was held on 5th July, 2022 wherein appropriate corrections were made in the draft. 8
11. However, the necessary affidavits reached to Kolkata on 8th August, 2022 after legalization/apostization and the draft was thereafter finalized on or about 30th August, 2022 and thereafter the application was filed, and this led to delay of almost 4 months in filing of such application.
12. Mr. Ratnanko Banerji, Learned Senior Advocate representing the defendants submitted that the order dated May 20, 2022 which was passed in the suit by this Hon'ble Court is a decree because Civil Suit No.175 of 2014 was dismissed on merits and not for default. He submits that the provisions of Section 151 of the Code of Civil Procedure, 1908 cannot be relied upon for the purpose of recalling of a decree passed by a Civil Court. The order dated 20th May, 2022 which had dismissed C.S. 175 of 2014 is a decree within the meaning of Section 2(2) of the Code of Civil Procedure, 1908. He submits that the said application is not maintainable because unless the suit is restored and brought on the file of this Hon'ble Court, the question of plaint filed in the suit being amended does not and cannot arise.
13. Mr. Banerji submitted that the plaintiffs have sought to club more than one and several causes of action in one application, more so, when the suit itself stands dismissed since 20th May, 2022. He submits that the defendants has apparently started taking steps to have the decree dated 20th May, 2022, drawn up before the Decree Department, Original Side, High Court at Calcutta.
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14. Mr. Banerji submitted that the purported story narrated in the application have earlier been repeated in other proceedings between the same parties, which has been disbelieved by the appropriate forum, and which is evident from an order dated 8th April, 2022 passed by the National Company Law Tribunal, Guwahati Bench in the condonation of delay application. He submits that the plaintiffs are not entitled to seek relief as prayed for in the suit, since at the interlocutory stage, the application which was filed by the plaintiffs for seeking interim reliefs was dismissed by this Hon'ble Court by an order dated 8th August, 2016 and the plaintiffs were directed to pay costs assessed at 1000 GMs. to the defendant no.1, Trust, which will be used for charitable purposes of the Trust and a further cost 500 GMs. was to be paid to the West Bengal State Legal Services Authority for the completely misconceived petition.
15. Mr. Banerji submits that the plaintiffs conduct shows that the plaintiffs are not interested in the prosecution of the suit, but merely want to keep the suit pending for the purpose of harassing the answering defendants. After the institution of the suit and after the dismissal of the interlocutory application in 2016, the plaintiffs have lost interest in the suit and all of a sudden from 2020 onwards have been engaged only in changing the advocates, which shows the dilatory tactics of the plaintiffs. He submits that the application being M.A. No. 5 of 2021 was filed for condonation of 1332 days delay in restoring the company petition which was filed under Sections 397 and 398 of the Companies 10 Act, 1956 before the National Company Law Tribunal, Kolkata before the proceedings were transferred to Guwahati Bench of the NCLT. He submits that several opportunities were given to the plaintiffs for rectifying the defects in the plaint from 23rd December, 2021 but the plaintiffs have failed to cure the defects. In the meantime, the plaintiffs have taken out an application being G.A. No. 6 of 2022 in the suit sometime in the month of March, 2022 for obtaining leave from this Hon'ble Court to issue the Writ of Summons in the suit. He submits that the defendants have been clear about the fact that the plaintiff have been negligent and have not taken any steps to pursue the suit after dismissal of the interlocutory application by the order dated 8th August, 2016.
16. Mr. Banerji further submitted that the plaintiffs have also not explained the delay for preferring the present application.
17. Heard the Learned Counsel for the respective parties, perused the materials on record. The plaintiffs have filed the suit in the year 2014. By an order dated 8th May, 2014, the plaint was admitted subject to scrutiny by the department. On scrutiny, the department has found altogether eight defects in the plaint. The plaintiffs have failed to cure the defects as pointed out by the department, a report was submitted before this Court by the department and accordingly by an order dated 23rd December, 2021, the plaintiffs were allowed to cure the defects within two weeks subject to payment of cost of Rs. 1 lakh to the West Bengal State Legal Services Authority (SLSA). Though the order was 11 condition precedent but the plaintiff has not complied with the said order within the time period. By an order dated 21st January, 2022, time to comply with the order was extended till 14th February, 2022 and in the meantime, the plaintiffs have paid the cost on 1st February, 2022 but have not completely cured the defects inspite of further extension granted to the plaintiffs.
18. The matter was again taken up for hearing on 20th May, 2022, on the said date also the Counsel for the plaintiffs prays for time to cure the defects, accordingly, this Court has passed the following order:
"The Court: Vide order dated 23rd December, 2021, this Court has granted liberty to the plaintiffs to cure defects with the condition for payment of cost of Rs.1 lakh within a period of two weeks from the date as condition precedent. As per the report filed by the Master and Official Referee dated 19th January, 2022 which reflects that plaintiffs did not take any steps in the suit and no cost was paid in terms of the order dated 23rd December, 2021. The Master and Official Referee has again submitted a report on 21st April, 2022 intimating that the plaintiffs had partly cured the defects and paid the cost. Today when the matter was called, counsel for the plaintiffs again prays for time to cure the defects appearing in the plaint. Counsel for the defendant raises objection and submits that the suit was filed in the year 2014 and in the year 2021 this Court has granted liberty to the plaintiffs to cure the defects. But in spite of liberty granted by this Court, the plaintiffs had failed to cure the defects and had also not taken any steps for issuance of writ of summons upon the defendants till date. It reveals from record that the suit is filed in the year 2014. Vide order dated 08.05.2014 plaint was admitted subject to scrutiny by the department. On scrutiny of the plaint altogether eight defects were pointed out and in spite of the same, the plaintiffs had failed to cure the defects. Vide order dated 23.12.2021 the Co-ordinate Bench of this Court had permitted to cure the 12 defects but in spite of specific direction the plaintiffs failed to carry out the same. In view of the above, this Court is of the view that the plaintiffs have filed the suit only to harass the defendants and to drag the matter. Hence, this Court has no other alternative but to dismiss the suit."
19. Chapter VIII of the Rules on the Original Side of this Court that is entitled, Writ, Summons, Process. Rule 2A of the Chapter provides that printed forms of the writ of summons may be obtained from the Registrar by any intending plaintiff or any advocate acting on the Original Side at a nominal charge; that the plaintiff or his advocate acting on the Original Side, shall, at the time of presentation of a plaint, produce therewith sufficient number of copies of such forms to provide for one original writ of summons and two copies for service on each defendant; and, that the form shall be filled up in part as indicated in the Rule and left blank in part to be filled up in the Registrar's office. Rule 6 of Chapter VIII of the said Rules stipulates, "6. Summons to be delivered to the Sheriff within 14 days. Except as hereinafter provided every writ of Summons shall be taken out and delivered to the Sheriff, for service within the local limits of the jurisdiction of this Court, or for transmission for service elsewhere. A Writ of Summons shall have annexed thereto a copy of the plaint and of every document, sued on, a copy of which is filed therewith. Unless an extension of time is obtained, it shall be taken out and delivered to the Sheriff within 14 days from the filing of the plaint or the date of the order of amendment.
Unless otherwise ordered, the writ of summons requires to be served by registered post under the provision of Rule 19A of order V of C.P.C. shall be served in all cases by the Sheriff of Calcutta."
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20. Rule 7 mandates that "unless otherwise ordered" no summons shall be received by the Sheriff for service or transmission after the expiration of the periods specified in Rules 6 and 8. Rule 8 conceives of fresh summons being prepared consequent upon amendment thereof; such fresh summons being required to be delivered within 14 days to the Sheriff for service. Rule 9 says that except as provided by Rule 8, a fresh writ of summons shall not be issued without an order to be obtained in Chambers. Rule 46 of Chapter XXXVIII of the Rules contains the omnibus power of "the Court or a Judge" to enlarge or abridge the time appointed by the Rules upon such terms as the justice of the case may require and any such enlargement may be ordered although the application for the same is not made until after the expiration of the appointed time. It is about the same power as is conferred on a court by Section 148 of the Civil Procedure Code.
21. In an unreported Division Bench judgment of this Court in APOT No. 780 of 2002, APO No. 528 of 2002, GA No. 741 of 2002, GA No. 1003 of 2001, CS No. 217 of 1989 (Deepak Prakash v. Jayanta Kumar Bose) delivered on June 16, 2004, one of the issues in that appeal was whether the suit was liable to be dismissed by reason of the failure on the part of the plaintiff to take appropriate steps to effect service of the writ of summons on the defendant for about seven years. The judgment drew strength from the principle recognized in Order IX Rule 5 of the Code to ultimately hold that the suit in that case was deserving of dismissal for the laches on the plaintiff's part in effecting 14 service of the writ of summons on the defendant. The relevant passages appear at pages 8 to 9 and 12 of the judgment.
"It is true that the provision of Order 9, Rule 5 does not apply in cases where the Writ of Summons has not been served at all but only applies in cases where it comes back unserved, but we may take note of the legislative intent contained in Order 9, Rule 5 to indicate the legislative intent and the expedition which is expected for issuance of Writ of Summons. Moreover, the language of Order 9, Rule 5 for dismissal of suit is almost mandatory inasmuch as it is contained in Order 9, Rule 5 that the Court "shall" make an order for dismissal of the suit unless certain conditions are satisfied.
In our opinion, the matter of extension of time for issuance of a Writ of Summons should not be taken lightly. The plaintiff under the present scheme of Civil Procedure Code cannot have an unlimited time to cause service of Writ of Summons upon the defendant.
Our above observations are also based on the fact that even under the Original Side Rules there is a specified time limit for taking out the Writ of Summons and to deliver the same to the Sheriff for affecting service upon the defendants which is fourteen days from the date of the institution of the suit.
It does not appear that there is any provision setting out an outer limit for issuance of Writ of Summons upon the defendants, in such a circumstances, we are of the opinion, the general principle of law of limitation contained in Article 137 Limitation Act, 1963 should apply and the period in each case would have to be properly construed."
"The plaintiff after filing of the suit did not take any steps whatsoever and sat tight over the matter and nearly after seven years the applications for extension of time to issue of Writ of Summons was filed and that too without any plausible explanation for such delay. ..."15
22. In the judgment reported at 1994 (2) CHN 161 (State Bank of India v. Tarit Appliances (P) Ltd.). Two of the defendants in such suit applied for dismissal thereof on the ground that the writ of summons had not been taken out for service. The only explanation that the plaintiff gave was that it was unfortunate that the writ of summons had not been lodged, which the Court found was no explanation at all. The Court held that the provisions of the Limitation Act would apply and unless the delay was condoned the application for issuance of a fresh writ would be barred by time:
"18. I am unable, therefore, to accept Mr. Mitra's submission that in matters of this nature, where time is limited or prescribed by the rules of our High Court, the Limitation Act does not have any application whatsoever. It is now well settled that the Limitation Act is not necessarily limited in its application only to those applications made under the Code of Civil Procedure. Nor can the Limitation Act be made inapplicable on the ground urged by Mr. Mitra, that the right to take out a writ of summons continues from day to day for ever after filing of the suit. This is not a right which continues from day to day afresh. The right to take out a writ arose immediately upon presentation of the plaint or re-verification thereof and an application for extension of time for enforcement of that right must be taken out within three years after its lapse, i.e., within three years after lapse of 14 days from the expiry of 31.5.89. Indeed on every day during those three years the right remained alive, but after the lapse of the three years the Limitation Act would intervene and without condonation of delay the application for such issuance of a fresh writ could be barred by time.
"19. That the general power to extend time exists is indisputable. The same can co-exist with a period of limitation also. The writ of summons is to be got issued and lodged within 14 days from the filing of the plaint. One can conceive of many such 16 applications for extension of time made on dates which occur after those 14 days but prior to the lapse of three years therefrom. In my opinion, therefore, the general power under Chapter XXXVIII rule 46 cannot be used or invoked so as to get rid of the bar of limitation altogether."
23. In the judgment reported at (2006) 3 Cal LT 230 (Shrikant Mantri v. Radheshyam Chotia). The Division Bench considered, inter alia, the previous Division Bench judgments reported at 61 CWN 212 (Laxmi Trading v. Shriram Gobindnarain) and AIR 1979 Cal 8 (Electrical Industries Corporation v. Punjab National Bank) and held at paragraph 9 of the report as follows:
"9. Considering the facts of this case and the decisions (reported and unreported) which have been cited at the Bar, we are of the view that a valuable right has accrued to the defendants in the suit and it does not appear from the records that the defendants have at any point of time waived their rights to be served with the writ of summons in the usual course prescribed by law. In Lakshmi Trading case (supra) the Division Bench of this Court was pleased to hold that where the plaintiff has not made an application for the issuance of fresh summons within the time prescribed nor has made an application within that period for an extension of time, the master can no longer entertain an application or such extension, far less an application for issue of fresh summons and the Court will be bound to make an order that the suit be dismissed. The Division Bench was pleased to observe that the valuable right had accrued in favour of the defendants. In case of Satyanarayan Todi (supra) the Hon'ble Division Bench of this Court was also not inclined to exercise powers under section 5 of the Limitation Act in absence of proper explanation as to what happened during the relevant period. It further appears that the Hon'ble Division Bench was also pleased to observe that Rules 6 and 8 of Chapter VIII of the Original Side Rules do not in anyway affect or after the 17 provisions of Order 9 Rule 5(1) of the Civil Procedure Code and that Order 9 Rule 5(1) CPC, in the absence of specific provisions in the Original Side Rules, applies to the Original Side as well."
24. In the judgment at reported at 2006 (3) CHN 201 (East Bengal Steam Services Ltd. v. East Bengal Steam Service & Engg. Works Workers Co-operative Industrial Society Ltd.), the Court used the underlying sentiment of Order IX Rule 2 in rejecting an appeal from an order dismissing a suit where the writ of summons had not been served for 20 years. Paragraph 8 of the report is apposite:
"8. In his judgment, the learned Single Judge has relied on Order 9 Rule 5 to hold that under that provision a suit has to be dismissed when a writ of summons has been returned unserved and the plaintiff has within a month thereafter failed to apply for issue of fresh summons. In our opinion, the provision under Order 9 Rule 5 would not be apposite because here it is contemplated that a proper summons was issued by the plaintiff and the same remained unserved and was returned as such to the Court. The reliance of learned Judge on that provision cannot, therefore, be of any avail to the plaintiff. However, that would not by itself change the position because under Order 9 Rule 2, there is a clear provision that if the summons is not served upon the defendant, in consequence of the failure of the plaintiff to pay Court-fee or postal charges, if any, chargeable for such service or to present copies of the plaint or concise statements, as required by Order 7 Rule 9, Court may make order that the suit be dismissed. The thrust, therefore, is on the inaction on the part of the plaintiff and it is clear that while after filing the suit the plaintiff remains inactive, by not making the payment of Court-fee or postal charges chargeable for such service or fails to present copies of the plaint or concise statements, then the Court would be justified in dismissing the suit. When we see the provision of Order 7 Rule 9 sub-rule (1A), it becomes clear that the plaintiff has to supply the copies of the plaint and the draft forms of summons 18 and fees for the service thereof. It is clear in this case that in the present suit nothing of the sort was done. However, we have to also take into consideration the original Side Rules as this was a suit filed on the Original Side of this High Court. Under Rule 2A of Chapter VIII, the plaintiff or his Advocate has to obtain printed forms of the writ of summons on payment of certain fees. He has also to supply along with the plaint sufficient number of copies of such forms to provide for one original writ of summons and two copies for service on each defendant. The rule provides the further details to be mentioned in such writ of summons. Rule 2B suggests that writ of summons in forms 2 and 3 should be annexed with the copy of the plaint and of every document sued on which documents are filed along with the plaint. Rule 6 specifically provides that the writ of summons shall be taken out and delivered to the Sheriff for service within the local limits of jurisdiction of this Court or for transmission elsewhere. The rule ends with the following words:
"Unless an extension of time is obtained, it shall be taken out and delivered to the Sheriff within 14 days from the filing of the plaint or the date of the order of amendment."
Under Rule 7, it is specifically provided that unless otherwise ordered, no summons shall be received by the Sheriff for service on transmission upto (sic, after) the expiration of the days mentioned in Rules 6 and 9."
25. The plaintiff insists that the defendant is seeking to take advantage of a mere procedural lapse for which there is no specific consequence that is provided either in the Code or in the Rules on the Original Side of this Court. The plaintiff says that it would be harsh to infer that for non-service of writ of summons the penal consequence of an order of dismissal of the suit would visit the plaintiff. The plaintiff seeks to draw inspiration from the judgments reported at AIR 2006 SC 269 (Uday Shankar Triyar v. Ram Kalewar Prasad Singh) and AIR 2003 SC 19 189 (Salem Advocate Bar Association, Tamil Nadu v. Union of India) to demonstrate that even where the Code stipulates that a default on the plaintiff's part would result in the dismissal of the suit, the Supreme Court found such provision to be directory and not mandatory. The plaintiff pleads that it ought to be given a chance to make amends for the writ of summons not having been served earlier and a conditional order may be made with an in-built default clause of dismissal.
26. In Uday Shankar Triyar the Supreme Court opined that procedure being a handmaiden to justice should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The plaintiff in that matter claimed in an eviction suit that the suit premises was let out to an individual for his personal residential occupation but such individual had sub-let a portion to an organization; that the tenant had committed default in paying rent and electricity charges; and, that the suit premises was required for the plaintiff's personal use. The trial court decreed the suit, directing eviction and payment of rent and electricity charges. It held that the tenant had taken the premises on rent in his personal capacity and not on behalf of any organization to which a portion was sub-let without the consent of the landlord. The private individual and the organization preferred a joint appeal with the organization being represented by the private individual as its former president. The appellate court stayed the eviction. During the pendency of the appeal, the private individual 20 appellant died and his heirs did not come on record. Another individual, the first respondent before the Supreme Court, claiming to be the working president of the organization applied before the first appellate court for deletion of the name of the first appellant and for the appeal papers to reflect that the organization was the sole appellant with such individual being shown as its working president. The application for substitution was opposed by the plaintiff. The first appellate court dismissed the appeal on the ground that though the private individual tenant and the organization were arrayed as appellants, the vakalatnama accompanying the memorandum of appeal was signed only by the private individual and there was no vakalatnama by the organization. Such order of dismissal recorded that since the legal heirs of the private individual appellant had not applied for substitution the appeal had abated and there was no appeal on record by the second appellant organization. The order was challenged before the High Court which set aside the dismissal of the appeal on the ground that neither the landlord nor the registry had objected to the vakalatnama when the appeal was filed and since the second appellant as a juristic person was already on record, the person entitled to represent such juristic person should have been permitted to be brought on record. The plaintiff carried the order of the High Court to the Supreme Court which construed the provisions of Order XLI Rule 1 and Order III Rule 4 of the Code and held that the defect in the first appeal was a procedural irregularity. It was in such context that the law was expressed in the following words at paragraph 17 of the report: 21
"17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognized exceptions to this principle are:--
(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;
(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant."
27. In the Salem Advocate Bar Association case, in the context of clauses (e) and (f) of Order VII Rule 11 of the Code that were introduced by the amending Act of 1999, it was held at paragraph 16 as follows:
"16. Our attention has been drawn to Order 7 Rule 11 to which clauses (e) and (f) have been added which enable the court to reject the plaint where it is not filed in duplicate or where the plaintiff fails to comply with the provisions of Rule 9 of Order 7. It appears to us that the said clauses being procedural would not require the automatic rejection of the plaint at the first instance. If there is any defect as contemplated by Rule 11(e) or non- compliance as referred to in Rule 11(f), the court should ordinarily give an opportunity for rectifying 22 the defects and in the event of the same not being done the court will have the liberty or the right to reject the plaint."
28. In the judgment reported at (2006) 2 SCC 777 (Vidyawati Gupta v. Bhakti Hari Nayak) where a Division Bench judgment of this Court, which held that unless a plaint complied with the requirements of the amended provisions of the Code it would be deemed to be nonest, fell for consideration. The non-compliance complained of was of the provisions of Orders VI and VII of the Code. The Supreme Court held that the requirements of Order VI and Order VII of the Code were procedural nature and any omission of compliance thereof would not render the plaint invalid but the defect would be curable and, if cured, the rectification will date back to the date of presentation of the plaint. Paragraph 24 of the report records the relevant submission and paragraph 49 is the Court's pronouncement thereon:
"24. In addition to the above, it was also urged on behalf of the respondents that mere procedural omissions which were curable could not affect the validity of a plaint as filed. Various decisions of the different High Courts relating to failure in complying with the provisions of Order 6 of the Code were cited on behalf of the respondents and it was pointed out that in all the said cases it was consistently held that the court has a discretion to remove the illegality to be cured if the plaintiff has acted in good faith and without any gross negligence and after the defect is cured the suit will be deemed to have been filed when it was first instituted. In particular the decision of the Bombay High Court in Hirabai Gendalal v. Bhagirath Ramchandra & Co. that of the Special Bench of the Allahabad High Court in Wali Mohd. Khan v. Ishak Ali Khan and the decision of the Calcutta High Court in Ramgopal 23 Ghose v. Dhirendra Nath Sen were relied upon. In addition, the respondents also relied on a recent decision of this Court in Salem Advocate Bar Assn. v. Union of India wherein while considering the effect of the amendments introduced in the Code by the amending Acts 46 of 1999 and 22 of 2002, it was observed in para 16 that the attention of the Court had been drawn to Order 7 Rule 11 to which clauses (e) and (f) had been added which enabled the Court to reject the plaint where it is not filed in duplicate or where the plaintiff failed to comply with the provisions of Rule 9 Order 7. This Court was of the view that the said clauses being procedural would not require the automatic rejection of the plaint at the first instance. If there was any defect as contemplated by Rule 11(e) or non-compliance as referred to in Rule 11(f), the Court should ordinarily give an opportunity for rectifying the defects and in the event of the same not being done, the Court will have the liberty or the right to reject the plaint."
"49. In this regard we are inclined to agree with the consistent view of the three Chartered High Courts in the different decisions cited by Mr Mitra that the requirements of Order 6 and Order 7 of the Code, being procedural in nature, any omission in respect thereof will not render the plaint invalid and that such defect or omission will not only be curable but will also date back to the presentation of the plaint. We are also of the view that the reference to the provisions of the Code in Rule 1 of Chapter 7 of the Original Side Rules cannot be interpreted to limit the scope of such reference to only the provisions of the Code as were existing on the date of such incorporation. It was clearly the intention of the High Court when it framed the Original Side Rules that the plaint should be in conformity with the provisions of Order 6 and Order 7 of the Code. By necessary implication reference will also have to be made to Section 26 and Order 4 of the Code which, along with Order 6 and Order 7, concerns the institution of suits. We are ad idem with Mr Pradip Ghosh (sic) on this score. The provisions of sub-rule (3) of Rule 1 Order 4 of the Code, upon which the Division Bench of the Calcutta High Court had placed strong reliance, will also have to be read 24 and understood in that context. The expression "duly" used in sub-rule (3) of Rule 1 Order 4 of the Code implies that the plaint must be filed in accordance with law. In our view, as has been repeatedly expressed by this Court in various decisions, rules of procedure are made to further the cause of justice and not to prove a hindrance thereto. Both in Khayumsab and Kailash although dealing with the amended provisions of Order 8 Rule 1 of the Code, this Court gave expression to the salubrious principle that procedural enactments ought not to be construed in a manner which would prevent the Court from meeting the ends of justice in different situations."
29. Chapter VIII of the Rules on the Original Side of this Court require the summons to be delivered to the Sheriff within 14 days from the filing of the plaint or the date of the order of amendment, unless an extension of time is obtained. Rule 12 of Chapter VI of the Original Side Rules empowers the Registrar or Master to "transact all such business and exercise all such authority and jurisdiction as under these rules may be transacted or exercised by a Judge in Chambers" except where it is otherwise prescribed or in respect of certain specified proceedings enumerated in the Rule. One of the excepted matters specified is a contested application unless it is taken up by consent of the parties or advocates representing them.
30. On the reading of the authorities cited, the following principles emerge:
(i) A valuable right accrues to a defendant upon the plaintiff failing to take steps within reasonable time for effecting service of the writ of summons.25
(ii) As to what is reasonable time would be governed by the provisions of Chapter VIII of the Rules on the Original Side of this Court, failing which the provisions of Order IX of the Code and the principles underlying therein would apply.
(iii) An application for enlargement of the time to issue or lodge the writ of summons or to effect service thereof cannot be carried to the Registrar or Master if it is made beyond the time prescribed in Chapter VIII of the Rules on the Original Side of this Court or of the Code, whichever is applicable.
(iv) Section 5 of the Limitation Act would apply where an application is made beyond the prescribed time for the enlargement of the time to effect service of the writ of summons. The sufficiency of the cause shown for the delayed application has to be assessed before the issue of enlargement of time for the service of the writ of summons is taken up. The court, meaning the Judge, has the power to enlarge the time for effecting service of the writ of summons upon sufficient cause being shown.
31. In Uday Shankar Triyar the second appellant was on record without either the court registry or the respondent objecting to the defect in the Vakalatnama as regards the second appellant. It was such defect that was found to be curable which could not be allowed to defeat a substantive right. In Salem Advocate Bar Association the Supreme Court held that where the plaint had not been filed in duplicate or where the plaintiff had failed to comply with Order VII Rule II of the Code such failure would not ipso facto warrant the rejection of the plaint but the plaintiff may be afforded an opportunity to rectify its mistake. Nothing in the judgment holds that a plaintiff can endlessly defer the service of the writ of summons on the defendant and still be entitled to rectify such colossal default. In Vidyawati Gupta it was again 26 held that any omission in compliance with the provisions of Order VI or Order VII of the Code in a suit instituted in a chartered High Court will not render the suit invalid but the plaintiff would be afforded a chance to cure the defect.
32. In the present case, the suit was filed in the year 2014 and admittedly, the plaint filed by the plaintiffs is defective and no writ of summon was served upon the defendants. This Court provided several opportunities to the plaintiffs and also imposed cost upon them, inspite of opportunities, the plaintiffs failed to cure the defects. Taking into consideration the facts, this Court has dismissed the suit for not curing defects and non-issuance of writ of summons till the month of May, 2022.
33. Plaintiffs have taken the shelter of the illness of the father-in-law of the plaintiff no.1 but the same was of the year 2018 and thereafter on 23rd December, 2021, this Court allowed the plaintiffs to cure defects even after the extension of time, the plaintiffs failed to cure the defects of the plaint till 20th May, 2022 and after the order passed by this Court dated 20th May, 2022, the plaintiff has filed the present application in the month of September, 2022 and thus the ground on which the plaintiff intends to take sympathy is before the order dated 23rd December, 2021, thus the same cannot be taken into consideration. As regard the allegation made against the Advocate-on-record, it has now became fashion to file applications by making allegation upon the erstwhile advocates to get favourable orders though it is also the duty of the 27 party concern to be diligent in proceeding with the case before the Court of law. In the present case, the plaintiffs had the knowledge about the order dated 23rd December, 2021 but even then the plaintiffs have not taken appropriate steps to cure defects.
34. Considering the above facts, this Court finds that the plaintiffs are not entitled to get any reliefs as prayed for by the plaintiffs.
35. In view of the above, GA No. 8 of 2022 is thus dismissed.
(Krishna Rao, J)