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Judgment
Indira Banerjee, J.—The Judgment of the Court was as follows:
The Court: In the application being G. A. No. 1545 of 2006, the petitioner, being the defendant No. 1 has inter alia prayed for dismissal of the suit being C. S. No. 461 of 2002, on the ground of failure of the plaintiffs to take steps for service of the writ of summons.
By an indenture of lease dated 24th February, 1973, one Mihir Kumar Law leased out premises No. 42A, Shakespeare Sarani, Calcutta - 700 017, hereinafter referred to as the suit premises, to the petitioner for a period of 21 years.
The indenture of lease inter alia contained a renewal clause, in terms whereof, the lessee was to notify to the lessor, at least one year before expiry of the lease, of the intention of the lessee to exercise option to renew the lease, for a further period of 21 years.
The said clause inter alia provided that, if the lessor and the lessee could not, within 30 days from the date of service of notice of renewal of lease, agree to the rent payable for the next 21 years, they would each nominate an independent person as arbitrator to decide the rent. In case of difference between the arbitrators, the matter was to be referred to an umpire.
According to the petitioner, the petitioner exercised its option for renewal of the lease. It is alleged that the said Mihir Kumar Law did not take any steps, either to execute a fresh deed of lease, or to renew the earlier lease.
The lease expired on 23/24th February, 1994. Thereafter the petitioner and/or its office bearers filed a suit being Title Suit No. 1345 of 1994 in the City Civil Court at Calcutta for specific performance of the agreement for renewal of the said lease, as recorded in the Indenture of Lease dated 24th February, 1973.
The petitioner also made an application in the said suit, for an order restraining Mihir Kumar Law from interfering with or disturbing the petitioner''s possession of the demised premises. It is stated that the suit as also the interlocutory application are pending.
In the meanwhile, by a registered indenture dated 2nd January, 1993, the said Mihir Kumar Law transferred assigned the suit premises to Shri Om Trust of which the said Mihir Kumar Law was sole trustee. The said Mihir Kumar Law later appointed the plaintiff No. 1 as co-trustee. The plaintiff No. 3 was appointed Managing Trustee by the plaintiff No. 1 and the said Mihir Kumar Law. Some time later, the said Mihir Kumar Law resigned from the Trust and the plaintiff No. 2 was appointed trustee in his place.
On or about 11th October, 1995 M/s. M.P. Productions Pvt. Ltd. and Suman Investments Pvt. Ltd. filed a suit being C.S.No.335 of 1995 in this Court against the petitioner claiming a decree for possession of the portion of the premises occupied by the petitioner, mesne profits and other relief''s.
An interlocutory application was filed in the said suit. The said interlocutory application was disposed of by an order dated 3rd July, 2001 whereby this Court held that, the plaintiffs in the said suit not being owners of the premises, were not entitled to the relief''s prayed for therein.
Mihir Kumar Law who had been impleaded as proforma defendant No. 5 in the said C.S. No. 335 of 1995, allegedly filed a written statement, inter alia questioning the entitlement of the plaintiffs in the said suit to claim any right over and in respect of the premises in question.
The plaint in this suit was presented on 27th February, 2003 and admitted subject to scrutiny by the department. After initiation of the suit the plaintiffs did not take any steps for service of writ of summons on the defendants. The writ of summons was not taken out, or delivered in the office of the Sheriff of Calcutta, for service on the defendants, within the time prescribed by the Original Side Rules of this Court.
No extension of time was obtained for taking out writ of summons or delivery thereof to the office of the Sheriff of Calcutta as required under the Original Side Rules of this Court.
The petitioner contends that no steps having been taken for service of writ of summons, and in any case the initial institution of the suit not being valid, the plaint is liable to be rejected and the suit dismissed.
The application being G.A. No. 1545 was filed on 17th May, 2006 and appeared in the list as ''New Motion'' on 19th May, 2006; when directions were issued for affidavits.
From the affidavit in opposition, filed by the plaintiffs in G.A 1545 of 2006, it appears that on 22nd July, 2006 the plaintiffs made an application before the learned Master and obtained an ex parte order dated 24th July, 2006, extending the time for service of writ of summons.
The petitioner has filed an appeal being G. A. No. 2899 of 2006, against the order dated 24th July, 2006, under Rule 15 of Chapter VI of the Original Side Rules of this Court.
Mr. Ajay Krishna Chatterjee appearing on behalf of the defendant No. 1/petitioner submitted that under Chapter VIII Rule 6 of the Original Side Rules of this Court the Summons is to be delivered to the Sheriff within 14 days from the institution of the suit. Rule 7 of Chapter VIII provides that the Sheriff is not to receive summons after expiry of time.
Mr. Chatterjee referred to Order 9 Rules 2 and 5 of the Code of Civil Procedure, which are extracted hereinbelow for convenience:
R.2. Dismissal of suit where summons not served in consequences of plaintiff''s failure to pay costs.-Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the Court-fee or postal charges, if any, chargeable for such service or failure to present copies of the plaint as required by Rule 9 of Order VII, the Court may make on order that the suit be dismissed:
Provided that no such order shall be made, if notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer.
R.5. Dismissal of suit where plaintiff, after summons returned unserved, fails for three months to apply for fresh summons.-(1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of seven days from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officer, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that -
a) he has failed after using his best endeavors to discover the residence of the defendant who has not been served, or
b) such defendant is avoiding service of process, or
c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.
2) In such case the plaintiff may subject to the law of limitation bring a fresh suit.
Order 9 Rule 2 provides for dismissal of suit where summons is not served in consequence of the failure of the plaintiff to pay costs or present copies of the plaint and Order 9 Rule 5 provides for dismissal of the suit where the plaintiff after return of unserved summons, fails for 7 days to apply for fresh summons.
Mr. Chatterjee cited the judgment of this Court in Laxmi Trading v. Sriram Govinda Narayan, reported in 61 CWN 212 where this Court held that, where the plaintiff had not made an application under Order 9 Rule 5 of the CPC for issue of fresh summons, within the time stipulated in the said Rule, nor made an application for extension of time within the said period, the Master could no longer entertain an application for issue of fresh summons.
Mr. Chatterjee also referred to the judgment in Fort Gloster Industries Ltd. and Another Vs. Tatanagar Transport Corpn. and Others, where this Court, following the judgment in Lakshmi Trading v. Sriram Govind Narayan (supra) held that where the plaintiffs had not made any attempt to effect service of the Writ of Summons within one month from the date of filing of the suit, no material particulars regarding the illness of the advocate-on--record were disclosed, no explanation was forthcoming as to what the concerned advocate was doing from 20th February, 1986 till June, 1986 and no extension application had been filed for lodging the Writ of Summons afresh, a right had accrued in favour of the defendants, and the application for extension of time to lodge a fresh writ of summons was liable to be dismissed.
Mr. Chatterjee submitted that the application for extension of time far service of writ of summons was not made within the time stipulated in Order 9 Rule 5. In fact, the application for extension of time was in itself barred by limitation, the same having been made beyond the period of 3 years stipulated under Article 137 of the Limitation Act, 1963 for making of an application.
In support of his submission, that a suit was liable to be dismissed if the writ of summons was not lodged, within 14 days or returned unserved, Mr. Chatterjee relied on an unreported decision of a Division Bench of this Court in A.P.O.T. No. 780 of 2002/A.P.O. No. 528 of 2002 (Dipak Prakash &. Ors. v. Jayanta Kr. Bose & Ors.) delivered on 16th June, 2004.
Mr. Chatterjee also cited the single bench judgments in Hindustan Motors Ltd. v. National Insurance Co., reported in 2004 (1) CLJ 180 and State Bank of India v. Tarit Appliances, reported in 1994 (2) CHN 161.
In Dipak Prakash & Ors. (supra) the Division Bench held that even though Order 9 Rule 5 did not apply to cases where the writ of summons had not been served, but applied only where it came back unserved, yet the general principle of law of limitation contained in Article 137 of the Limitation Act, 1963, would apply, to cases where the writ of summons had not been served.
The Division Bench inter alia held as follows:
The legislative intent for expeditious disposal of suit finds a reflection in the provision of Order 9, Rule 5 of the Code which contains the provision for dismissal of suit where summons, after being issued to the defendant, return unserved and the plaintiffs, within the specified period from the date of return, fail to apply for fresh summons. The period of three months contained in the earlier CPC had been amended and had been abridged to one month and thereafter to seven days. Therefore, if a suit as against the defendant can now be dismissed for the failure of the plaintiff to apply for fresh Writ of'' Summons within seven days in cases where the summons have come unserved, we see no reason why the plaintiff should get an unlimited time for issuance of a writ of summons when in accordance with rules of the Original Side it has to be done within fourteen days from the date of institution of the suit.
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 CPC 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 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 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.
In Hindustan Motors v. National Insurance Co. (supra) P. C. Ghose, J. held as follows:
The Hon''ble Division Bench of this High Court in Lakshmi Trading v. Sri Ram Govind Narayan, reported in 61 CWN 212 has held that where the plaintiff has not made an application under Order IX Rule 5 of the CPC for the issuance of fresh summons within three months. The learned Master can no longer entertain an application for an extension of time far less an application for such issue of fresh summons. In such a case, the Court is bound to pass an order dismissing the suit.
In the instant case, following the same view I am of the opinion that the right of the petitioner was crystallised and such valuable right accrued by virtue of the failure on the part of the plaintiff to take steps in the suit. The learned Master cannot pass such order and extend the time for service of the fresh summons without giving an opportunity to the petitioner of being heard. Such action of the Master destroys the valuable right of the petitioner therefore, a violation of natural Justice. The same cannot also be entertained.
Therefore, in my opinion, the order so passed by the Master is also bad-in-law. I further do not find any cogent ground made out by the plaintiff for extension of returnable date of the writ either before me or before the learned Master for such extension. Hence, in my opinion both the orders passed by the Masters dated 23.9.1998 and 25.6.2002 are set aside and the application so filed by the petitioner for dismissal of the suit is allowed.
In State Bank of India v. Tarit Appliances (supra) A.N. Ray, J. held as follows:
There is no specific rule which lays down any time limit for taking out of the summons from the Registry but the only time limit is that of lodgment in the office of the Sheriff, which must be within 14 days from the filing of the plaint. The summons must naturally, therefore, be taken out within that period. Unless it is so taken out, it cannot obviously be lodged in time.
That general power to extend time exists is indisputable. The same can co-exist with 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 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.
In Electrical Industries Corporation Vs. Punjab National Bank and Others, a Division Bench of this Court held that when in a suit in the Original Side of this Court, the first summons was returned unserved and there was delay in applying for issue of fresh summons, the delay would have to be explained. The Court declined to condone the delay of one and a half years in exercise of its power u/s 5 of the Limitation Act, 1963, in the absence of explanation for the delay.
Mr. Chatterjee submitted that the order dated 24th July, 2006 of the Master was liable to be set aside and the suit dismissed on the ground of the writ of summons not having been served on the petitioner for over 3 years from the date of'' institution of the suit.
Mr. Chatterjee submitted that the plaintiffs had, in their application before the learned Master, suppressed the fact that, an application for dismissal of the suit on the ground of non service of writ of summons was pending.
Mr. Chatterjee further submitted that the application before the learned Master was, in any case, not affirmed before the Oath Commissioner, but before a Notary Public in contravention Rule 5 of Chapter XV of the Original Side Rules of this Court.
Relying on the judgment in In Re: Gaya Textiles Private Ltd. etc. and Star Textile Engineering Works Ltd., Mr. Chatterjee argued that the plaintiffs being within the jurisdiction of this Court were required petitions before the Oath Commissioner.
The technical irregularity, if any, in affirming the application before the Notary instead of the Oath Commissioner, was, in my view, not fatal to the application and did not call for its dismissal.
Mr. Abhrajit Mitra appearing on behalf of the plaintiffs submitted that there was no provision either in the Original Side Rules or in the CPC for dismissal of the suit on the ground of the writ of summons not having been taken out or on the ground of the writ of summons not having been delivered to the Sheriff.
Mr. Mitra argued that Rule 6 of Chapter VIII of the Original Side Rules merely stipulates the time limit for delivery of writ of summons to the Sheriff. Rule 6 of Chapter VIII does not provide for consequences of non-compliance of the time limit for delivery of the writ of summons to the Sheriff. In the absence of any penal consequence of non-compliance of the time stipulation, the suit could not be dismissed.
Mr. Mitra further argued that failure to deliver the writ of summons for service was also not a ground for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure. The question therefore, was, whether the suit could be dismissed by Court, in exercise of its inherent power, for not causing delivery of writ of summons to the Sheriff within 14 days of filing of the plaint.
Mr. Mitra submitted that even if non-delivery of writ of summons were a ground for rejection of the plaint/dismissal of suit, liberty would have to be given to the plaintiff to rectify the defect, and only in case of failure to do so, would the Court adopt the drastic step of dismissal of suit and/or rejection of the plaint.
Mr. Mitra emphasized that Order 9 Rule 2 or Order 9 Rule 5 of the CPC which provided consequences of default, had no application in this case.
Relying on the judgments of the Supreme Court in the cases of Kailash Vs. Nanhku and Others, , Smt. Rani Kusum Vs. Smt. Kanchan Devi and Others, and Shaikh Salim Haji Abdul Khayamsab v. Mr. Kumar, reported in 2005 (10) JT 1, Mr. Mitra submitted that procedural provisions ought not to be interpreted in a manner that hampers the process of dispensation of justice.
In the context of his aforesaid submission, Mr. Mitra also cited decision of Supreme Court in Salem Advocate Bar Association Vs. Union of India (UOI), .
Mr. Mitra next cited the decision of the Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), and argued that Court had inherent power to extend time prescribed or allowed by Civil Procedure Code. Section 148 of the CPC which prescribed an upper limit could not take away the inherent power of the Court to pass such orders as might be necessary for the ends of justice.
Mr. Mitra argued that extension of time to deliver writ of summons was not governed by the Limitation Act, 1963, but by Chapter XXXVIII Rule 46 of the Original Side Rules under which the Court had power to enlarge time as specified in the said rules.
Mr. Mitra submitted that Rule 46 of Chapter XXXVIII was similar to section 148 of the Civil Procedure Code, except that unlike section 148 of Civil Procedure Code, there was no limit in Chapter XXXVIII Rule 46 to the time for grant of extension.
Mr. Mitra referring to the judgment of the Supreme Court in Iridium India Telecom Ltd. Vs. Motorola Inc., submitted that the Original Side Rules framed under Clause 37 of the Letters Patent, would regulate proceedings in the Original Side of Chartered High Courts and not the provisions of the Civil Procedure Code.
Mr. Mitra submitted that this Court should in exercise of its inherent power under Chapter XXXVIII Rule 46 of the Original Side Rules extend the returnable date of writ of summons after the remaining defects were cured.
Mr. Mitra submitted that the appeal being G.A. No. 2899 of 2006, from the order dated 24th July, 2006 of the Master was also being decided by this Court. This Court might, therefore, pass such order as could have been passed by the Master. In this context, Mr. Mitra referred to the judgment of this Court in the case of Naresh Ch. Basu v. Haider Hike Khan, reported in 1949 CLJ 89.
Dealing with the case of Dipak Prakash (supra), State Bank of India v. Tarit Appliances Pvt. Ltd. (supra) and Hindustan Motors Ltd. v. National Insurance Co. (supra), Mr. Mitra submitted that the said judgments were rendered prior to the judgment in the case of Kailash v. Nanku (supra) and the other judgments which have uniformly held that where consequences for non-compliance of a procedural law had not been provided, the Court would not treat such procedural law as mandatory.
Mr. Mitra cited the case of Siraj Ahmad Siddiqui Vs. Shri Prem Nath Kapoor, where the Supreme Court held that service of writ of summons was not necessary if defendant had appeared and taken time for filing written statement.
In the instant case the defendants have not taken time to file written statement. As such the judgment of the Supreme Court in the case of Siraj Ahamed Siddiqui (supra) can have no application.
Mr. Mitra next submitted that delay in delivery of writ of summons was for reasons beyond the control of the plaintiff, in as much as scrutiny of the plaint had been delayed.
This Court, however, examined the concerned persons of the department, dealing with scrutiny of plaints. It appears that the attention of the advocate on record was drawn to the defects. The advocate on record took no steps to rectify the defects.
The rules of procedure are, as argued by Mr. Mitra, meant to advance and not defeat justice. There can also be no doubt that the consequences of dismissal of proceedings on technical grounds, being drastic, the Courts lean towards substantial justice, when technical considerations are pitted against substantial justice.
The Court cannot, however, in its anxiety to do substantial justice, ignore laws enacted by the legislature, give a go bye to the Rules framed by the Full Court under Clause 37 of the Letters Patent, condone gross negligence, want of diligence and/or laches of an indolent litigant and defeat a valuable right that might have accrued to the opponent.
The provisions of the Original Side Rules, relevant to this case are Rules 6 and 7 of Chapter VIII, Rule 46 of Chapter XXXVIII and Rules 12, 13 and 15 of Chapter VI, which are set out hereinbelow for convenience:
Chapter VI
Business which map be transacted by Registrar or Master. The Registrar or Master may 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 otherwise prescribed, or in respect of the following proceedings and matters, that is to say:
a) All contested applications except with the consent of the parties concerned or their attorneys;
b) All applications under Rule 11 clauses 1 to 8, 11 and 15 to 17;
c) The making of an order for the issue of a warrant of committal; and also
d) Applications, matters and proceedings under Chapter XII, Rule 1 and 6.
Reference by Registrar or Master to a Judge. Where any matter appears to the Registrar or Master proper for the decision of a Judge, the Registrar or Master may refer the same to a Judge, and the Judge may either dispose of the matter or refer the same back to the Registrar or Master with such directions as he may think fit.
Appeal from Registrar or Master to a Judge. Any person affected by any order or decision of the Registrar or Master may appeal therefrom to a Judge. Such appeal shall be by way of endorsement on the summons by the Registrar or Master at the request of any party, or by notice (No. IA) in writing to attend before the Judge without a fresh summons within five days after the decision complained of, or such further time as may be allowed by a Judge or the Registrar or Master. Unless otherwise ordered, there shall be at lease one clear day between service of the notice of appeal and by day of hearing.
Chapter VIII
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 mandamus ...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 on the Sheriff within 14 days from the filing of the plaint or the date of the order of amendment.
Sheriff not to receive summons after time. Unless otherwise ordered, no summons shall he received by the Sheriff for service or transmission, after the expiration of the days mentioned in Rules 6 and 8.
Chapter XXXVIII
Power to enlarge or abridge time. The Court or a Judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may he ordered, although the application for the same is not made until after the expiration of the time appointed or allowed.
On a conjoint reading of Rules 6 and 7 of Chapter VIII and Rule 46 of Chapter XXXVIII of the Original Side Rules, the Sheriff is not to accept any Writ of Summons, taken out or delivered to him after expiry of 14 days from the date of filing of the plaint, unless otherwise ordered by Court.
The Court has the power to extend the time to take out and deliver the writ of summons to the Sheriff, even on an application for extension of time made after 14 days. However, as held by A. N. Ray, J. in State Bank of India v. Tarit Appliances (supra), the power of the Court to entertain an application for extension of time to take out and deliver the writ of summons to the Sheriff is subject to Article 137 of the Limitation Act, 1963, which prescribes a limitation of three years for all applications to Court for which no other period of limitation is prescribed.
The judgment in State Bank of India v. Tarit Appliances (supra) has been followed in Hindustan Motors Ltd. v. National Insurance Co. (supra) and approved by the Division Bench in Dipak Prakash & Ors. v. Jayanta Bose (supra).
It is not in dispute, that the writ of summons was not taken out or delivered to the Sheriff for over three years from the date of filing of the plaint. Nor was any application for extension of time made, within three years from the date of expiry of the time for delivery of the writ of summons, stipulated in Rule 6 of Chapter VIII. Over two months after the petitioner moved the application being G.A. No. 1545 of 2006 for dismissal of the suit, the plaintiffs moved an application before the Master, without notice to the petitioner, and obtained an ex parte order dated 24th July, 2006 from the Master extending the time to take out the writ of summons and deliver it to the Sheriff.
There was no application before the Master for condonation of the delay in applying for extension of time to take out and deliver the writ of summons to the Sheriff. Nor was the delay condoned. There was no explanation for the delay in moving the application for extension of time for delivery of the Writ of Summons to the Sheriff. The plaintiff has apparently proceeded on the basis that the application was within limitation, and so has the Master.
It is true, as argued by Mr. Mitra, that a separate formal application is not mandatory. The delay could be explained in the application for extension of time itself and an oral prayer made for condonation of the delay. In this case, however, as observed above, there was no application for condonation of delay; either formal or oral. Nor was the delay condoned.
In any case, the application before the Master, had been made by the plaintiff ex parte, suppressing the material fact that an application filed by the petitioner in this Court, for dismissal of the suit on the ground of non-service of writ of summons, in which directions for affidavits had been issued, was still pending adjudication.
Rule 12 of Chapter VI of the Original Side Rules of this Court, which provides for the business that the Master might transact, expressly debars the Master from adjudicating applications, which are contested, except with the consent of the concerned parties or their attorneys. The Master might, therefore, extend the time for fresh service of summons, provided there is no contest.
In Shaw and Co. Vs. B. Shamaldas and Co., P.B. Mukharji, J. held that the Master had no authority and/or jurisdiction to decide a contested application; since the application being G. A. No. 1545 of 2006, for dismissal of the suit on the ground of non-service of writ of summons, was pending, the application before the Master for issue of fresh writ of summons was, in effect, contested and in any event liable to be deemed a "contested application".
It is true, that an application may be moved before the Master ex parte. The Master might, however, in his discretion, direct service on the party to be affected by the order sought. Moreover Rule 13 of Chapter VI provides that the Master might refer to the Judge any matter, which in his view, should be decided by a Judge and the Judge might either dispose of the matter or refer the same back to the Master with such direction as the Judge might deem fit.
The Master does not have power to entertain or adjudicate contested applications or to pass such orders as would render contested applications pending before a Judge infructuous. Where, therefore, an application is contested or deemed to be contested or any related applications are pending adjudication before a Judge, the Master is bound to refer the application before him to the Judge for his direction in terms of Rule 13 of Chapter VI of the Original Side Rules.
The attention of the Master had apparently not been drawn to the application for dismissal of the suit, pending in this Court. Had the attention of the Master been drawn to the application, the Master would perhaps have made a reference to a Judge, of the application, for extension of time to take out and deliver the Writ of Summons to the Sheriff, in terms of Rule 13 of Chapter VI or at least directed notice on the defendants to obtain the consent of the defendants and/or their attorneys to take up the matter.
The Master inherently lacked authority or jurisdiction to pass the ex parte order dated 24th July, 2006, without the consent of the defendants or their attorneys, since the application before him was, in effect, and for all practical purposes contested. The ex parte order is thus null and void and of no effect.
The order dated 24th July, 2006 of the Master, which has gross suppression of the material fact of pendency of the application for dismissal of the suit, on the ground of non-delivery of writ of summons, cannot be sustained and the same is set aside. The appeal being G. A. No. 2899 of 2006 is disposed of accordingly.
The question before this Court is, whether this Court should extend the time for delivery of the writ of summons for service on the defendants as prayed for by the plaintiff, or dismiss the suit on the ground of non-delivery of the writ of summons as prayed for by the petitioners.
As argued by Mr. Mitra, Order IX Rules 2 and 5 have no application in this case. The provisions of Order 7 Rule 11 of the CPC for rejection of the plaint is, thus, not attracted.
At the same time, Mr. Mitra''s submission that no consequences have been provided for failure of the plaintiff to lodge the writ of summons with the Sheriff for service on the defendants within the stipulated time of 14 days is difficult to accept. The Sheriff has expressly been debarred by Rule 7 of Chapter VIII of the Original Side Rules from accepting a writ of summons, delivered to him after expiry of the date of filing of the plaint, unless otherwise ordered by Court.
Thus where there is no order of Court extending the time for delivery of the writ of summons, the suit must be dismissed. The Court has no power to waive Article 137 of the Limitation Act, 1963. There can be no question of any order of Court, on a hopelessly time barred application, not accompanied by any application for condonation of delay.
In the second Salem Advocate Bar Association case (supra) the Supreme Court held that where the time for doing an Act had been prescribed under the Limitation Act, the time could not be extended by Court u/s 148 or 151 of the Civil Procedure Code. The principle would equally apply to extension of time under Chapter XXXVIII Rule 46 of the Original Side Rules of this Court. This Court cannot extend the time for making an application for extension of'' time under Rule 46 of Chapter XXXVIII beyond three years from the date of expiry of the time stipulation, of which extension is sought.
It is true, that procedural provisions ought not to be interpreted in a manner that hampers dispensation of justice, as argued by Mr. Mitra. It is also true, that where consequence for non-compliance with the time limit are not prescribed, the Court may treat the time limit as directory and not mandatory. Each case, however, has to be decided on its own merits and extension of time cannot be granted as a matter of course.
The judgments in the first Salem Advocate Bar Association case (supra), the second Sa1em Bar Association case (supra). Kailash v. Nanhku (supra), Rani Kusum v. Kanchan Das (supra) and Saikh Salem Haji Abdul Khayamsab v. Mr. Kumar have made no difference to the law propounded by this Court: in its judgments in State Bank of India v. Tarit Appliances (supra), Hindustan Motors v. National Insurance Co. (supra) and Dipak Prakash v. Jayanta Bose & Ors. (supra).
In the first Salem Advocate Bar Association case (supra) the Supreme Court was considering a challenge to section 27 of the CPC as amended in 2002 which provides as follows:
Summons to Defendants-Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed on such day not beyond thirty days from the date of the institution of the suit.
The Supreme Court observed that the object of the amendment was to avoid long delay in issue of summons for want of steps by the plaintiff. It was quite evident that if all that was required to be done by the plaintiff had been done within a period of 30 days then no fault could be attributed to the plaintiff. If for any reason, the Court was not in a position or was unable or did not issue Summons within 30 days, there would be compliance with the provisions of section 27, provided within 30 days of issue of Summons, the party concerned had taken steps to file the process fee and completed other formalities to enable the Court to issue summons.
In the second Salem Advocate Bar Association case (supra), the Supreme Court found that provisions in the Civil Procedure Code, stipulating the maximum time limit for an act, for example Order VIII Rule I, fixing upper limit of 90 days for filing of the written statement, were not mandatory, and the Court is not altogether powerless to extend the time, even in cases of exceptional hardship. Having held so, the Supreme Court, however, proceeded to make the following clarification:
Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to he borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1.
In Shaikh Salem Hazi Abdul Khayumsab (supra) a writ of summons was issued whereby the defendants were summoned on 22nd October, 2003. They sought time to file written statement. By an order dated 29th October, 2003, the trial Court granted time till 17th November, 2003. On 17th November, 2003 further time was allowed till 19th February, 2004. However, as 19th February, 2004 was a holiday, the written statement was filed on 20th February, 2004. The trial Court, however, refused to accept the written statement on the ground of the same having been filed beyond 90 days.
The question in the aforesaid case was, when the Court itself had granted time to file written statement till 19th February, 2004, and that day being a holiday, the written statement had been filed on 20th February, 2004, whether the written statement could be rejected on the ground of the same not having been filed within 90 days. The Supreme Court considering its earlier judgments in the two cases of Salem Advocate Bar Association and Kailash v. Nanhku observed that procedural law was not to be tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions were the hand-maid and not the mistress, a lubricant not a restraint in the administration of the justice.
In Kailash v. Nanhku Supreme Court held as follows:
Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on'' him and within the extended time falling within 90 days. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.
It is also to be noted that though the power of the Court under the proviso appended to Rule 1 Order 8 is circumscribed by the words "shall not be later than ninety days" but the consequences flowing from nun-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in view- the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.
In Rani Kusum v. Kanchan Devi (supra), where the subordinate Judge had accepted a written statement about five months after expiry of ninety days from the date of service of writ of summons, the Supreme Court reiterated its earlier view in Kailash v. Nanhku (supra).
The proposition of law that emerges from the judgments of the Supreme Court, relied upon by Mr. Mitra, is that the Court has power to extend the time stipulated in the Civil Procedure Code, for an act, in appropriate cases, to prevent injustice, subject to the laws of limitation.
None of the precedents cited by Mr. Mitra are an authority for the proposition that the Court should always extend the time for an act, notwithstanding the conduct of the concerned party. On the other hand, in the second Salem Advocate Bar Association case (supra) the Supreme Court has cautioned the Courts against indiscriminate extension of time. Laches cannot be condoned.
In the instant case there appears to be no explanation at all for the delay in taking out the writ of summons except for the weak excuse of the department taking time over scrutiny of the plaint. The plaintiff and/or his advocate knowing fully well that the plaint was to be lodged within 14 days for service of writ summons, did absolutely nothing. No application for extension of time was made till after three years from the date of expiry of the time to lodge the writ of summons, and after the petitioner had applied for dismissal of the suit. Not a single letter was written to the concerned employees/officials of the department or to the Registrar Original Side of the Court, requesting him to expedite scrutiny of the plaint.
It is true that this Court would not allow justice to be defeated by reason of laches of the department or its staff. It is, however, patently clear that the story of delay in scrutiny of the plaint, is nothing but an afterthought. The allegations are not supported by any materials on record.
There are no ground for extension of time for delivery of the writ of summons to the Sheriff. Extension of time, at this stage, would render the provisions of Rule 6 and 7 of Chapter VIII of the Original Side Rules nugatory. Moreover, as observed above, there was no application for extension of time within the period of limitation of 3 years, as observed above. The application being G.A. 1545 of 2006 thus succeeds.
The order of the Master dated 24th July, 2006 having been set aside and quashed, the suit is dismissed.
Application succeeds.
Suit dismissed.