Calcutta High Court
Parijat Vyapaar Private Limited & Anr vs J. Khan & Ors on 4 May, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
GA 3007 of 2010
With
CS 323 of 2003
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
PARIJAT VYAPAAR PRIVATE LIMITED & ANR.
Versus
J. KHAN & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 4th May, 2015.
Mr.Malay Kr. Ghosh, Sr.Adv.
Mr.Paritosh Sinha, Adv.
Mr.A.Singh, Adv.
Mr.S.Choudhury, Adv.
Mr.Aniruddha Mitra, Adv.
Mr.Surajit Sen, Adv.
Mrs.Nairita Datta Chowdhury, Adv.
The Court: The second defendant has applied for recalling of an ex parte Judgement and Decree dated August 6, 2009.
It is contended on behalf of the second defendant that, the Writ of Summons of the suit was not served upon 2 him. Reliance is placed on a report issued by the Deputy Sheriff which shows that the postal envelope came back with endorsement 'Incomplete Address'. Such report also shows that, no attempt was made to serve the writ of summons through the District Court. It is submitted that, the plaintiffs claim to have caused service by publication. Referring to Order 5 Rule 20 of the Code of Civil Procedure,1908, it is submitted that, it is the Court which has to direct the issuance of substituted service. In the instant case, the learned Master has done so by an order dated November 11, 2008. The learned Master has no jurisdiction to pass such an order. Assuming though admitting that the learned Master has jurisdiction, it is submitted that, the prayer made in the Master's Summons was for publication in newspapers circulating at Ranchi. The second defendant is described to be from Ranchi. Three publications made by the plaintiffs were all from Kolkata. Therefore, such publications were not in terms of the prayers made in the Master's Summons.
On behalf of the plaintiffs it is contended that, the learned Master has jurisdiction to pass the order dated November 11, 2008. Reference is made to Chapter 6 Rules 11 and 12 of the Original Side Rules in this regard. The conduct of the second defendant in the interlocutory 3 applications on four different occasions is highlighted. The second defendant has described himself to be at the place which is described in the cause title of the plaint as also of an address of Kolkata apart from another address. This description given by the second defendant appears on diverse period of time both prior to the order dated November 11, 2008 as well as subsequent thereto. It is submitted that in terms of Order 5 Rule 20(1A) of the Code of Civil Procedure, 1908 the publication has to happen at a place which is known to be the last place of residence or business of the defendant. In the instant case, three advertisements has appeared in three newspapers of Kolkata. The second defendant has described himself to be residing at Kolkata in the four affidavits used before Court.
In reply it is submitted on behalf of the second defendant that, it is the Court which has to form an opinion with regard to the issuing directions for substituted service. Reference is made to Order 9 Rule 5 of the Code of Civil Procedure, 1908 also.
I have considered the rival contentions of the parties and the materials made available on record.
CS No.323 of 2003 was decreed on August 6, 2009.Prior to the decree, the plaintiffs had taken out a Master's Summons being GA No.3187 of 2008 seeking, inter alia, 4 service of the Writ of Summons on the second defendant by publication. Such application was disposed of by the learned Master by its order dated November 11, 2008.
Chapter VI of the Original Side Rules of this Hon'ble Court relates to Chamber Business. Rule 11 prescribes the business to be disposed of in Chamber by a Judge. Rule 11 sub-Rule 14 relates to proceedings on the returns of writs or notices issued before or after judgement requiring cause to be shown in chambers. Rule 12 of Chapter 6 allows some businesses to be transacted by the Registrar or Master as exercised by a Judge in Chambers. The excepted matters which the Registrar or Master cannot transact have been specified in Rule 12. Rule 11 sub Rule 12 and 14 of Chapter VI do not falls within such excepted matters. Chapter VIII Rule 23 requires an application for substituted service made ex parte to be made by an affidavit and requires certain particulars specified therein to be stated. Such rule could not, in my view, be read to mean that an application for substituted service has to be made in Court when Rules 11 and 12 of Chapter VI allows such an application to be dealt with by the learned Master. In the present case the Master has passed an order dated November 11, 2008 allowing substituted service by publication in three newspapers. The newspapers are specified by such 5 order. The prayer in the Masters' Summons was for publication in various other newspapers also. Learned Master has passed an order specifying the three newspapers. The plaintiffs have acted in terms of such order passed by the learned Master and has published in the three newspapers named by the learned Master. The contention on behalf of the second defendant that the three newspapers must be read to mean that such newspapers having circulation in Ranchi as the second defendant is described in the cause title of the plaintiff to be of Ranchi and Jharkhand. I am not in a position to accept such contention. The second defendant has described himself to be residing at present at Kolkata from 2005 till 2010 in the four affidavits filed in Court. In terms of Order 5 Rule 20 (1A) of the Code of Civil Procedure, 1908 the publication should occur at a place where the defendant is last known to be residing and/or carrying business. In the instant case the three publications have happened in Kolkata which according to the second defendant itself is the last known residence of the second defendant.
So far as the contention of the second defendant that in terms of the Order 9 Rule 5 of the Code of Civil Procedure,1908, the Court referred to therein must mean to be the Court and not the learned Master, in my view, the 6 Original Side Rules allows the learned Master to transact some of the businesses which are to be transacted by Court.
The learned Master did not exceed his jurisdiction. The publications were made in terms of the order passed by the learned Master. I find no reason to allow GA No.3007 of 2010. The Writ of Summons have been duly served on the second defendant by publications in terms of the order dated November 11, 2008 passed by learned Master.
GA No. 3007 of 2010 is dismissed. No order as to costs. Interim order passed herein stands vacated.
(DEBANGSU BASAK, J.) dg2