Judgment:
Sanjib Banerjee, J.
1. The two suits are almost identical save the identity of the plaintiffs and the amounts claimed on account of money lent and advanced. The defendant in either case has applied for dismissal of the suit on the ground that no writ of summons was served within reasonable time by the plaintiff. It is submitted on behalf of the two plaintiffs that a judgment on the one matter would govern the other.
2. The plaints in the two suits were presented on March 28, 2003 and March 23, 2003, respectively. The writ of summons in the later suit was issued on March 25, 2009; in the earlier suit it was issued on April 1, 2003. By orders of the Master dated February 24, 2009 the returnable dates of the writs of summons were extended. On March 23, 2009 the defendant was served the writs of summons in both suits. The petitions have been filed in the beginning of April, 2009.
3. The defendant says that the plaintiffs took no steps after the institution of the suits for ensuring that the writ of summons in either case was served on the defendant. The defendant has also questioned the propriety of the ex parte orders of February 24, 2009 passed by the Master. The defendant asserts that these petitions be also treated as appeals from the orders dated February 24, 2009 passed by the Master. The defendant says that it was the bounden duty of the plaintiffs to cause service of the writ of summons, accompanied with copies of the plaints, within a reasonable time of the institution of the suits and the failure to discharge such responsibility without any justifiable cause should result in the dismissal of the claims.
4. In the affidavits used by the plaintiffs the only explanation that has been proffered is that 'there have been negotiations on and of between the plaintiff and the defendant for settlement' and only after it became evident that no settlement was possible that steps were taken for prosecuting the suits. In addition, the plaintiff has averred at paragraph 6 of its affidavit in CS No. 97 of 2003 as follows:
6. ...I state that it is the long-standing practice on the Original Side to apply ex parte before the learned Master for issuance of writ of summons and/or extension of returnable date of writ of summons. These applications are always heard ex parte, even in cases where the defendant has already appeared in an interlocutory proceeding. It is also the longstanding practice of this Hon'ble Court that order(s) are passed on these application(s) without giving any reasons in support thereof. The order of issuance of writ of summons and extension of returnable date of issuance of writ of summons do not effect (sic, affect) the merits of the case and is a purely procedural order in aid of the conduct of the suit.
5. The defendant refers to 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.
6. 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.
7. The defendant says that there is no express provision in the Rules for the dismissal of a suit on the ground of the writ of summons not having been taken out or lodged or served. The defendant states that there is no such provision in the Civil Procedure Code either. The defendant argues that in the absence of any provision either in the Rules or in the Code it cannot be said that a suit will linger forever without the plaintiff being required to cause service of the writ of summons thereof on the defendant. The defendant submits that Order IX Rule 5 of the Code be seen in this context:
5. Dismissal of suit where plaintiff, after summons returned unserved, fails for seven days 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 officers, 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 endeavours 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.
8. The defendant contends that if a plaintiff is penalised by his suit being dismissed for the plaintiff not having taken steps for service of the writ of summons after it has returned unserved, it would be absurd to suggest that if the plaintiff were not to take out or serve the writ of summons in the first place the suit has to hang endlessly in the court's register. The defendant relies on 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 recognised 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 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. (Pages 8-9)
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.... (Page 12)
9. The defendant refers to a Single Bench 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 reverfication 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 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.
10. The defendant has also relied on a Division Bench 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 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.
11. 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 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.
12. 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 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.
13. 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 organisation; 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 organisation preferred a joint appeal with the organisation 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 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 organisation applied before the first appellate court for deletion of the name of the first appellant and for the appeal papers to reflect that the organisation 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 organisation 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 organisation. 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 organisation. 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:
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-recognised 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.
14. 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 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.
15. The plaintiff relies on a 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 non est, 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 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 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.
16. The next judgment cited by the plaintiff is reported at 2004 (4) CHN 360 (Assembly of God Church v. Ivan Kapper) where the matter in issue was whether a plaint could be rejected under Order VII Rule 11 of the Code for mis-joinder of plaintiffs or mis-joinder of causes of action. The learned Single Judge was of the view that a plaint could not be rejected on account of mis-joinder of causes of action or on account of mis-joinder or non-joinder of parties.
17. The plaintiff finally places an unreported judgment of a Division Bench of this Court in APD No. 669 of 2003, CS No. 577 of 1987 (Hindustan Motors Ltd. v. National Insurance Co. Ltd.) delivered on January 30, 2009. The plaintiff in that suit filed in the year 1987 did not take any steps for service of the writ of summons by lodging the same with the Sheriff. It was contended on behalf of the plaintiff that it had been in negotiation with the defendant for an amicable settlement and as such expeditious steps were not taken in the suit. In 1992 the plaintiff filed a writ petition challenging a notice issued by the defendant insurance company wherein it was mentioned that a previous suit had been instituted in respect of the claim. The writ petition contended that in view of subsequent events the suit had become infructuous and the petitioner undertook to withdraw the suit and proceed with the writ petition which, it claimed, was more comprehensive. In 1998, however, the plaintiff applied before the Master for extending the returnable date of the summons. The time was extended but no immediate steps were taken by the plaintiff. The writ petition was dismissed in the year 2001 on the ground that disputed questions of fact could not be entertained in such jurisdiction. Thereafter, a second application was brought before the Master for extension of the returnable date of the summons which was also allowed and the writ of summons was served in July, 2002. The defendant applied immediately for dismissal of the suit on the ground that no steps had been contemporaneously taken to serve the writ of summons in the suit. The defendant's application succeeded (incidentally, reported at 2004 (1) Cal LJ 180) and such order of dismissal of the suit was appealed against.
18. The Division Bench allowed the appeal and set aside the order of dismissal on the ground that the order of September 7, 2001 by which the writ petition was dismissed 'granted an implied liberty to the plaintiff to proceed with (the) suit and the defendant did not object contemporaneously.' Since the writ of summons was served on July 11, 2002, it was held that 'such delay cannot be said to be 'inordinate' and we wish to condone the same.' On facts, the Division Bench found that the correspondence reflected that there 'had been some talk of settlement and/or negotiation' (Page 13). The Division Bench distinguished the judgment reported at : AIR 1954 Cal 369 (Shaw & Co. v. B. Shamaldas) cited on behalf of the defendant on the ground that 'there, the defendant did not know about the pendency of the suit until they received the writ of summons.'
19. In the present case the plaintiffs have been unable to demonstrate that the defendant was aware of either suit, or had notice aliunde thereof, prior to the receipt of the writ of summons. There is no basis to the plaintiffs' claim that the parties had attempted to settle the matter. Despite the robust denial of such allegation by the defendant, nothing has been produced by the plaintiff in either suit to corroborate its statement that the parties were in negotiation to settle the claim. Upon a plaintiff failing to take steps for the service of summons time on a defendant within reasonable, a valuable right accrues to the defendant. There is no doubt that the court retains the authority to enlarge the time upon sufficient cause being shown by the plaintiff for the inaction on its part. But the extension of time cannot be granted for the asking or by an unreasoned order of the Master. In fact, the Division Bench judgment in Laxmi Trading had held that the failure of the plaintiff to apply for issue of fresh summons within a period of three months of the original summons returning unserved (the provision in the Code then allowed three months' time; it was reduced to one month by the amending Act of 1976 and further curtailed to seven days by the amending Act of 1999) had led to a valuable right accruing in favour of the defendant. The Division Bench was of the view that the plaintiff could not have an order destructive of the right in the absence of the defendant.
20. The upshot of the judgment in Laxmi Trading is that upon the time for applying for the issue of fresh summons under Order IX Rule 5 of the Code expiring, the Master cannot any longer entertain an application for issuance of fresh summons. It is the Judge, and the Judge alone, before whom an application for extension of time may be made and it is also the Judge, and the Judge alone, who is vested with the authority to dismiss the suit.
21. Since Order IX Rule 5 applies to this Court for want of a specific provision in such regard in the Rules on the Original Side of this Court, there is no reason for the underlying principle as embodied in the Rule not being read into a case where the Rule, in terms, does not apply. The unreported Division Bench judgment in Deepak Prakash has applied the principle in Order IX Rule 5 to a case where the summons had not been served at all for seven years. Though another Division Bench in East Bengal Steam Services Ltd. has found that in a case where the writ of summons has not returned unserved Order IX Rule 5 would not come into play, it has opined that the court can nonetheless dismiss the suit in view of Order IX Rule 2 of the Code. The East Bengal Steam Services Ltd. dictum does not detract from the ethos of the Deepak Prakash pronouncement. For one, both judgments recognise that the court has the authority to dismiss a suit if the writ of summons is not served within a reasonable time. The length of the time for service of writ of summons is not specified in Order IX Rule 2; it is specified in Order IX Rule 5. As to the reasonableness of the time that may be afforded to the plaintiff to take steps to effect service of the writ of summons on the defendant, the period specified in Chapter VIII and the time indicated in Order IX Rule 5 may be of some assistance. The Division Bench judgment in Laxmi Trading was not noticed in Tarit Appliances. Three Division Bench judgments subsequent to Tarit Appliances have drawn sustenance from Order IX Rule 5 of the Code to assess the reasonableness of the time within which a plaintiff has to take steps for effecting service of the writ of summons on a defendant. In all three cases of Deepak Prakash, Shrikant Mantri and Hindustan Motors Ltd, the judgments were rendered after the amending Act of 1999 took effect in 2002. In its Statement of Objects and Reasons, the amending Act of 1999 recorded, inter alia, the following as to the basis for bringing about a major revision in the Code:
With a view to keep the commitment given to the people of India so that a speedy disposal of cases may take place within the fixed time frame and with a view to implement the report of Justice V.S. Malimath, it was thought necessary to obtain the views of the State Governments on the subject also. In the Law Minister's Conference held in New Delhi, on 30th June and 1st July, 1997, the working paper on the proposed amendments to the Code of Civil Procedure, 1908 was discussed. On the basis of resolution adopted in the said Conference and with a view to implement the recommendations of Justice Malimath Committee, 129th Report of the Law Commission of India and the recommendations of the Committee on Subordinate Legislations (11th Lok Sabha), it is proposed to introduce a Bill for the amendments of Code of Civil Procedure, 1908 keeping in view, among others, that every effort should be made to expedite the disposal of civil suits and proceedings so that justice may not be delayed.
22. The Statement indicated some of the more important changes proposed to be made by the amending Act at paragraph 3 thereof. Sub-paragraph (c) of paragraph 3 of the statement professes that one of the changes proposed by the amending Act of 1999 was 'in order to obviate delay in service of summons' and it was proposed that a 'plaintiff shall take the summons from the court and send it to the parties, within two days of the receipt thereof, by post, fax, e-mail, speed post, courier service or by such other means as may be directed by the Court.'
23. In Laxmi Trading no application for the issuance of fresh summons had been made within three months from the date when the writ of summons was returned unserved, nor was any application made within that period for an extension of time. The question raised was whether in such circumstances the Master had the jurisdiction to entertain an application for issuance of fresh summons beyond the stipulated period of three months. The Division Bench concluded that,.where the plaintiff has not made an application for the issue of a fresh summons within three months, nor has made an application within that period for an extension of time, the Master can no longer can entertain an application for such extension, far less an application for the issue of a fresh summons and that in the situation arises, the court will be bound to make an order that the suit be dismissed....
24. 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.
25. In view of the Laxmi Trading judgment, the Master may not take up any application for extension of time under Order IX Rule 5 of the Code unless such application is made within the prescribed period. That the prescribed period has been abridged from three months as it stood prior to the 1976 amendment to seven days under the 1999 amendment is of no consequence. On a true reading of the Laxmi Trading opinion, where a writ of summons has been returned unserved the plaintiff can now not apply for extension of time for the issuance of a fresh writ before the Master unless such application is made within seven days of the date of return of the original summons. If it is illogical that a plaintiff committing default under Order IX Rule 5 would be liable to be penalised by the suit being dismissed and a plaintiff who had taken no steps at all for the issuance of the writ of summons in the first place would be entitled to more lenience, on the strength of the Laxmi Trading reasoning it would be irrational to permit the plaintiff in the second case to carry an application for extension of time for the issuance of the summons to the Master beyond the period of 14 days as contemplated in Chapter VIII of the Rules of this Court. Any application for extension of time for issuance or lodgment of summons made after the expiry of the prescribed time therefor has to contain a prayer for condonation of the delay and such prayer has to be allowed before the matter as to extension can be taken up. Upon the expiry of the prescribed time, either in case of a default under Order IX Rule 5 or in case of failure to lodge the summons with the Sheriff within 14 days from the date of filing of the plaint or the order of amendment, a valuable right would accrue to the defendant. Since the Master cannot take up contested applications, except with consent, as is specified in Rule 12 of Chapter VI, and since Laxmi Trading says that the valuable right that accrues to a defendant for default in the matter of issuance of writ of summons by the plaintiff cannot be destroyed in the defendant's absence, it stands to reason that an application for extension of time for issuance or lodgment or effecting service of writ of summons beyond the prescribed period can only be made before the Judge in Chambers and not before the Registrar or Master.
26. The unhealthy practice that the plaintiff has referred to, if it has developed at all, whereby the Master can be approached for a request by the plaintiff to enlarge the time for effecting service of the writ of summons at any stage, is precluded by the reasoning in the Division Bench judgment of Laxmi Trading. A valuable right accrues to a defendant, whether or not the defendant is aware of the institution of the suit, upon the plaintiff failing to take steps to effect service of the writ of summons on the defendant within reasonable time and such right cannot be undone by the ipse dixit of an unreasoned order of the Master routinely made on any or every application for extension of time to effect service of the summons. There is no arguing that even if a plaintiff fails to apply within the time prescribed by Order IX Rule 5 of the Code, he may bring a subsequent application for enlargement of time with a prayer for condonation of the delay in applying beyond time. Section 5 of the Limitation Act, 1963 would be available in such case. Section 5 of the Limitation Act requires a satisfaction of the court as to the sufficiency of the reasons for the delay. On a parity of reasoning, and since it would be opposed to public policy otherwise to allow a suit to linger endlessly without making the plaintiff accountable for diligently prosecuting the same, if no steps are taken for effecting service of the writ of summons in a suit filed on the Original Side of this Court within the time contemplated in Chapter VIII, an application for condonation of the delay may be carried to the Judge in Chambers. The procedure would be that the delay has first to be condoned upon satisfactory grounds being made out therefor before the question of enlargement of time for effecting service of the writ of summons can be taken up. The practice that the plaintiff has referred to, which can be unhealthy for more than one reason, cannot be condoned or allowed to continue at all.
27. 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.
(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.
28. Even in Hindustan Motors Ltd, where a lenient view was taken by the Division Bench, it was recognised that it would be absurd to suggest that a plaintiff who had failed to take steps to effect service of the writ of summons after it had returned unserved would be penalised by the suit being dismissed but a plaintiff who had taken no steps to effect service of the writ of summons at all would not be similarly dealt with. In the words of the Division Bench,.Our High Court Rules do not specifically contemplate a situation where the court is to dismiss the suit when no step at all is taken for service of the writ of summons. We are in agreement with Mr. Mitra that Order 9 Rule 5 may not be strictly applicable in the instant case. However, this is a situation worst (sic, worse) than the situation contemplated in Order 9 Rule 5. Hence, it would be a proposition that the suit could be dismissed in a situation contemplated under Order 9 Rule 5 and could not be dismissed if the situation is worst (sic, worse) than what was contemplated in the said provision. Such proposition would be ridiculous. (At page 10)
29. The failure of the plaintiff to contemporaneously notify the defendant of the institution of a suit is not a mere procedural irregularity. The authorities that the plaintiffs have brought, save Hindustan Motors Ltd, do not deal with the kind of default of which the plaintiffs here are guilty. 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 IX Rule 9 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 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. The judgment in Assembly of God Church is clearly inapposite in the facts of the present case. The unreported Division Bench judgment in Hindustan Motors Ltd. turned on the court being satisfied with the explanation proffered by the plaintiff therein, substantiated with documents relied upon, as to why it had not taken appropriate steps for effecting service of writ of summons earlier.
30. The present plaintiffs' bare assertion in either case that they were engaged in discussion with the defendant for settlement of the claims is uncorroborated and not even attempted to be substantiated. It would make a mockery of the judicial exercise involved in assessing sufficiency of cause if such specious excuse were to be accepted and the valuable right that has accrued to the defendant in the interregnum dislodged. Since the reason for the plaintiffs' inaction must have been the same before the Master, it would defy reason that a party claiming an indulgence on the ground that his opponent behaved in a certain manner would be granted such luxury without the opponent's version of things being called for.
31. Though the law of limitation is, in a sense a negative prescription, it is founded on public policy. Where a defendant has no knowledge of the institution of a suit for a period of six years when a suit if instituted on the date of the defendant's knowledge would be barred by the laws of limitation, it would take genuine and substantial grounds to be brought for the suit to be allowed to be continued. The run of the mill excuses of talks of settlement or default of pleader would not ordinarily suffice. If in equity a person seeking justice cannot be seen to have slept over his rights, a long dormant claim - technically filed but still effectively unborn qua the person against whom it is made - would not be permitted to be continued or resurrected for the mere asking. Just as high authorities have justified the laws of limitation on the ground that long quiescent claims have more cruelty in them than justice or that a defendant might have lost the evidence to dispute the stated claim or that persons with good causes should pursue them with reasonable despatch and diligence, the maxim vigilantibus non dormientibus jura subvenient can be applied to a plaintiff who takes no steps for six years to make the defendant aware of his claim against the defendant. Rights in property and rights in general cannot be in a state of constant uncertainty, doubt and suspense. A defendant is entitled to relief and quiet and being prevented from being harassed at a distant point of time after the commission of the injury complained of. It would take much more than the bald assertion of ongoing talks of settlement that the plaintiffs here cite to relieve the right that has been occasioned to the defendant by the plaintiffs' conduct.
32. The orders dated February 24, 2009 passed by the Master in the two suits are set aside as being without jurisdiction and otherwise without any basis. The plaintiffs' affidavits are treated as applications both for condonation of the delay in applying for extension of time to effect service of the summons on the defendant and for the extension and rejected for the wholly inadequate cause shown therein. GA No. 852 of 2009 and GA No. 853 of 2009 are allowed by dismissing CS No. 97 of 2003 and CS No. 94 of 2003, respectively. The plaintiff in either case will pay costs assessed at 600 GM for the unnecessary disquiet caused to the defendant.
33. Urgent certified photocopies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.