1. This application is arising out of a commercial suit claiming money decree, enquiry into damages, interest and other consequential reliefs.
2. The application is made by the defendant in this court by way of Master summons for the purpose of dismissing the suit for non-service of writ of summons.
3. Mr. Sumit Talukdar, learned counsel appearing for the petitioner has drawn my attention to the chapter 8 Rule G and Chapter 10 Rule 35 of the Original Side Rules and submitted that in the earlier, unless time extended, summons 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 and in the later, when the suits and proceedings, which have not appeared in the prospective list within six months from the date of institution, may be placed before a Judge in Chambers for the purpose of dismissal for default. Writ of summons is right of the defendant from which a returnable date of the suit is available. Even acceptance of the copy of the plaint cannot be regarded as waiver as to the non-service of writ of the summons.
4. He also placed Order 5 Rule 1 and Order 9 Rule 2 of the Code of Civil Procedure.
5. Under Order 5 Rule 1 of the Code of Civil Procedure when the suit has been duly instituted a summons may be issued to the defendant toappear and answer the claim on a day to be thereon specified provided that no such summons shall be issued when the defendant as appeared' at the presentation of the plaint and admitted the plaintiff's claim and provided further that where a summons shall be served, the court may direct to defendant to file a written statement of his defence, if any, on the date of his appearance and cause a entry to be made to that effect in the summons. So far the word 'may' is concerned provision of Order 9 Rule 2 of the Code of Civil Procedure is similarly placed.
6. The word 'may' signifies that service of the summons is not mandatory. In support of such continuation a judgment was delivered by the Allahabad High Court as reported in : AIR1981All400 wherein it is observed that the court should only consider that one party should not be unheard by adopting the principles of audi alterem partem.
7. In the present case no doubt that the writ of summons was not served in the particular case. There is also no doubt that the copy of the plaints was served upon the defendant. There is also no doubt that the parties are contesting two different suits in between themselves and the fate of one suit is dependable upon other.
8. Above all, an order was passed by this court on 12th January, 1998 which playing very crucial role in respect of service of writ of summons wherein question of both the suits arose and this court held that it is the common submission that both the suits should be heard one after another. It is recorded therein that it is submitted by Mr. Talukdar, learned counsel appearing for the petitioner that if the earlier suit is disposed of, then there is no necessity of proceeding with the second suit.
9. This is the second suit.
10. Therefore the common questions are involved in both the suits. In disposing an application under section 10 of the Code of Civil Procedure this court in presence of both the parties have directed appearance of both the suits after compliance of all the formalities on the date given thereunder i.e. with regard to time for filing a written statement discovery, inspection, affidavit of documents etc. But as the petitioner wan ted to keep point of dismissal of the suit for non-service of writ of summons open, such leave was granted so that one can take such point as preliminary point at the time of suit if so advised.
11. This petitioner, without wailing till the date of hearing of the suit made this application possibly thinking that dismissal of the suit under this context is a pure question of law.
12. By an interim order this application was made returnable by this court recording that if, in the meantime, the plaintiff takes out the writ of summons that should not be considered as a cause of defending the application for dismissal of the suit for non-service of writ of summons.
13. In such circumstances, question arose before this court as and when parties have come to know about the existence of the suit, respective dates about the completion of the formalities and hearing of the suit and above all accepted a copy of the plaint whether service of writ of summons is mere formality or not.
14. The petitioner relied upon various Judgments on various technical points indicating non-service of writ of summons is fetal for the purpose of existence of a suit.
15. By citing a Judgment reported in : AIR1960Cal538 (Thakur Das Majhi v. Chand Majhi and Anr.} learned counsel for the petitioner submitted that after the registration of the suit the defendant must be served under Order 5 Rule 1 with summons unless the case comes under the proviso of the order. By citing another judgment reported in AIR 1981 SC 773 (para 6) (Ajit Singh Thakur Singh & Anr. v. State of Gujarat) he stated that meaning of the 'sufficient cause' is sufficient cause before the expiry of the period of limitation but not after. He has also cited a Judgment reported in AIR 1979 NOC 163 (Calcutta) (Sethia Mining . v. Khas Dharamband Coitery Co. Ltd.) and made similar submission with regard to sufficient cause. He has also relied upon another Judgment reported in : AIR1954Cal369 (Shaw & Co. v. Shamal Das & Co.) where it has held that the duty of the plaintiff is to serve the summons in compliance with the provisions of the Act. If the summons is not served within the period suit will be liable to be dismissed. A defendant could not, by entering appearance, be said to have disabled himself from saying that the suit is liable to be dismissed for non-service of writ of summons. He has also cited another Judgment reported in 61 CWN 212 (Laxmi Trading v. Srtram Govindnaraian) and relying upon head notes therein he contended that as soon as time for issuance of summons has expired and the plaintiff has not filed an application for extension of time nor issued fresh summons within the prescribed period cannot be entitled to make an application before the Master after the expirty of such period for the purpose of extension of time period for the same.
16. Upon considering the factual aspect and accepting the view of the reported Judgment as to the fulfilment of principles of audi alterem partem there is no hesitation in my mind that non-service of writ of summons in the present case will be an idle formality.
17. Another aspect of the matter which has been agitated by Mr. Ranjan Deb, learned counsel appearing for the respondent which is very important. He contended that there is a lacuna in the procedure in contesting a suit in the Ordinary Original Civil Jurisdiction. Such lacuna is with regard to filing of warrant of attorney or vokalatnama.
18. In a case of suit, several proceedings are inhabitable. Courts are burdened with filing of numerous warrant of attorney or vokalatnama. As soon as a party files a suit and moves an interlocutory application service of writ of summons of the plaint may be deferred but copy of such interlocutory application has to be served upon the contesting respondents/defendants. Thereafter such contesting party is appearing on the basis of such service of the copy of the interlocutory application with the instruction of the respective clients by filing warrant of attorney or vokalatnama. As per rules a copy of the plaint is likely to be annexed with the application. Irrespective of such fact and irrespective of such service of the copy of the writ of summons an Advocate is entitled to contest the petition which is a by-product of the suit upon perusing the same onInstruction of the clients by filing a vokalatnama. Ironically such Advocate, at a later stage, coming before the court and representing that due to non-service of writ of summons his client was not able to give instruction to the Advocate and he is not able to enter appearance in the suit by filing a warrant of attorney or a vokalatnama. Tills is, of course, a lacuna in the proceeding in expeditious hearing of a suit. This can also be considered keeping an eye with the order proceedings. Suppose an appeal is preferred from any of the order of the single Bench there is no necessity of filing fresh warrant of attorney or vokalatnama before the appear court since the appeal is continuation of the original proceeding before the trial court. In case of revision the similar principles applies but of course such case of appeal and revision if filed in different courts then question of filing fresh vokalatnama may arise.
19. I am discussing about the authority of an Advocate. Can it be said that the party who has appeared in interlocutory application arising out of the suit through an Advocate will choose another Advocate at the time of hearing of the suit? Such instruction, if any, can arise only on a special circumstances where question of change of Advocate is required but in other circumstances Advocate is agent of a client in all respect. He is running an office. He is accepting all services. He is acting on behalf of the client in all respect. He is instructing the defendant in all possible manner. But he cannot accept the service of writ of summons which will be routed through the client to him. This makes a clear procedural lacuna and for the same hearing of the suit are being delayed unnecessarily as observed by the court with an experience of receiving, trying and determining the suits. Sometime hearing of the suits are delayed for a decade due to such lacuna in service. Sometimes court can feel service but cannot see the service as it happened in the present case.
20. It is more ironical that such agent of the litigant can even submit to the decree at the interlocutory stage on the basis of such warrant of attorney or vokalatnama given by his client to represent the interlocutory application. But he cannot accept the writ of summons and enter upon the suit unless fresh instruction is given by the client in favour of the selfsame Advocate after service of writ of summons.
21. Such complicated process of service cannot be encourageable which otherwise affect the court procedure and ultimately cause delay injustice. Procedure is hand made of justice made for maintaining the judicial discipline as well as to give quicker reliefs to the litigants but if situation reversely affect an amendment is obvious.
22. I, therefore, held that Original Side Rules should be amended in the following manner with prospective effect :
(i) Writ of summons will be served upon the non-appearing defendant as usual:
(ii) But if the sole defendant or any of the defendants once appeared through an Advocate before this court by contesting any applications arise out of the suit, such Advocate will be duty bound to inform the office of Sheriff about his appearance immediately;
(iii) Office of the Sheriff will maintain an appropriate register to record such appearances of the respective Advocates with particulars of their offices;
(iv) At the time of service of writ of summons Sheriff will serve duplicate copy of writ of summons upon such appearing Advocates which will be treated as parallal service;
(v) if an Advocate or Advocates within a period of one week from such parallal service upon him or them intimate the office of the Sheriff about the change of appearing Advocate, the court will go by the original mode of service of writ of summons falling which parallal service as aforesaid will be treated as appropriate service of writ of summons for all future courses of action;
(vi) Once an Advocate filed a vokalatnama in any of the proceeding the said will be taken as authority of an Advocate in all further courses of action in the suit and all proceedings in connection thereto;
(vii) The plaintiff will put additional fund in the office of the Sheriff as would be fixed by the said office for the purpose of parallel service;
(viii) Chapter VIII of the Original Side Rules relating to writ, summons, process should be followed by the Registrar or Master or Sheriff or concerned persons strictly. No routine extension will be given by them. An extension, if granted, may not be more than a week at a time and without payment of cost assessed at 100 Cms. as minimum rate of costs:
(ix) Period for disposal of suits for want of prosecution as prescribed under Chapter X Rule 35 within six months from the date of institution should be minimised to maximum period of three months;
(x) For the purpose of services of writ, summons, process as foresald, for the purpose of maintaining registers as aforesaid and for all practical purposes mode of modern electronic and computer mechanism should be adopted adltionally with the mannual process keeping parity with the same but to expedite the all above process.
23. Thus the application is dismissed but no order is passed as to costs. Let the hearing of the suit be expedited by the appropriate bench of this Hon'ble Court.
24. Department and all parties are to act on a signed copy minute of the operative part of the order.
25. Application dismissed