Govinda Ch. Ghose v. Bishnu Ch. Mitter — 1948 DIGILAW 79 (CAL)

JUDGMENT Majumdar, J. - An order was made on the 18th of February, 1948, striking off the defence of the Petitioner in a suit, in default of his tiling the affidavit of documents within 24 hours. The suit was instituted by the Respondent on the 6th of December, 1947, for possession of a portion of the premises No. 34D, Raja Navakissen Street and of certain movable property lying in the said portion and for a decree for certain sums of monies. It was alleged in the plaint that the Petitioner was in occupation of the said premises as a licensee from June, 1937. The Petitioner filed his written statement on 5th January, 1948, wherein he alleged that he and his wife have been in occupation of the said premises from February, 1935, by virtue of a right of residence for life conferred on them by Samarendra Krishna Deb uncle of his wife, who was then owner of the premises. On the 15th of January, 1948, the Respondent made an application for appointment of a receiver in respect of the movable property. The Petitioner having agreed to the removal of the movable properties by the Respondent no order for appointment of a receiver was made. On the 27th of January, 1948, an order was made by the Master on the application of the Respondent directing the Petitioner to file his affidavit of documents within 10 days. On the 6th of February, 1948, the ten days expired and on the 7th February, 1948, Mr. Mitter the Attorney of the Respondent wrote a letter to Mr. Ghose, Attorney of the Petitioner enquiring if his client's affidavit of document had been filed and if in course of Monday next the affidavit was not filed, his instructions were to take steps. No reply was sent to this letter. On the 14th of February the summons was taken out and made returnable on the 17th February, on which the order of the 18th February, 1948, was made. On the 20th February the affidavit of documents was affirmed and presented for acceptance but the Respondent having objected it was not accepted. The said order of the 18th February was signed and completed on the 21st February, 1948. The notice of motion for this application was taken out on 3rd March, 1948, for setting aside that order of the 18th February, 1948. The points urged by Mr. The said order of the 18th February was signed and completed on the 21st February, 1948. The notice of motion for this application was taken out on 3rd March, 1948, for setting aside that order of the 18th February, 1948. The points urged by Mr. M.N. Ghose in support of the application are:--(1) summons was a short one, (2) non-service of the summons as required by the rules of the Court, and (3) the order of the 18th February was obtained by suppression of true facts. 2. As to (1) Mr. Ghose contends that the summons having been taken out on the 14th and made returnable on the 17th it was not served 2 clear days before the return thereof as is required by rule 5 of Chap. VI of the Original Side Rules. 3. Rule 44 of Chapter 38 lays down where any particular number of days expressed to be clear days, is prescribed by the Rules and practice of the Court, the same shall be reckoned exclusive both of the first and that of the last day. Last day under the rule according to Mr. Ghose is not the returnable day, but the day previous to that day. By referring to rule 43 Mr. Ghose contends that it indicates that the last day may be a Sunday or a day when the Court may remain closed and as no summons could he made returnable on a Sunday or a day when the Court remains closed--'last day' must mean a day different from the returnable day. If that was so, then the summons in the case having been made returnable on the 17th February, the last day would be 16th February, and as such 2 clear days did not intervene between the 14th February, when the summons was taken out and the 17th February when it was made returnable. Mr. Ghose's contention in my judgment is not tenable. Rule 43 does not give the meaning of the words 'last day' as used in rule 44 It merely lays down the rule for reckoning the number of days when the last day is a Sunday or when the Court remains closed and the last day obviously means the day when the summons or notice is made returnable. Rule 43 does not give the meaning of the words 'last day' as used in rule 44 It merely lays down the rule for reckoning the number of days when the last day is a Sunday or when the Court remains closed and the last day obviously means the day when the summons or notice is made returnable. If the day previous was intended to be the last day the rule would have so said expressly in the same manner as appears in Chapter VI, rule 5, where the language is "the summons may be served on the day previous to the return thereof." 4. As to (2) viz. service of the summons the evidence is one-sided and consists of the statement contained in the affidavit of one Kanai Lal Chatterjee who was a clerk in the employ of Mr. Mitter the Respondent's Attorney and who was entrusted with the service of the summons on the 14th February, 1948, and the letter of the 17th February, written by the Respondent's Attorney to the Petitioner. 5. In paragraph 8 of his affidavit dated 8-3-48 Chatterjee says that he took summons to the office of Mr. Ghose and tendered it to his clerk. He looked into the summons and refused to accept the same on the plea that his master was away, that the period of notice was short and that the intervening days were holidays. Thereupon he stated the object of his visit to another gentleman whose name was Mr. C.C. De and he said that as Mr. Ghose was not in the office nobody was willing to take the risk of accepting the summons on his behalf. "Under the circumstances he had no option but to leave a copy of the summons at his office." In the letter of the 17th February, Mr. Mitter wrote to Mr. Ghose that the summons had been served by leaving a copy thereof on the table of Mr. Ghose. 6. "Under the circumstances he had no option but to leave a copy of the summons at his office." In the letter of the 17th February, Mr. Mitter wrote to Mr. Ghose that the summons had been served by leaving a copy thereof on the table of Mr. Ghose. 6. The case on behalf of the Respondent has been argued on the footing that the service was effected under rule 25 of Chapter VIII of the Original Side Rules not by delivering the summons to the Attorney but "by leaving it with the clerk in the employ of the Attorney at his place of business." It is clear from the evidence that the clerk was not willing to accept the service of the summons and the same therefore was left on the table of the Attorney. Rule 25 lays down that the service of the summons may be effected by delivering it to the Attorney or leaving the same with a clerk in His employ at his place of business. The rule merely prescribes the mode of service of the Attorney when such service is provided by Statute or by rules. I do not find in the Statute or in the rules any provision for service of the summons of an application of the present description on the Attorney. Rule 3 of Chap. XI recognises service of an order for discovery in the Attorney. In the premises I am of opinion that the meaning of the rule is that the service would be deemed to be a good service if the Attorney accepts delivery or the clerk accepts the notice but not when they refuse to accept. The rule does not make any provision as to what will happen in case of refusal. Leaving the summons on the table of the Attorney under the circumstances as mentioned above would not in my judgment, amount to sufficient service of the summons under rule 25. I am confirmed in my view by analogy to the case of Jiminez & Sons v. Queen [1883] WN. 232. In this case the question arose as to whether the service was a sufficient service within Or. 67 r. 2, Rules of the Supreme Court in England. The said rule lays down "All . . . summons . . . shall be sufficiently served if left . . . at the address . . . . 232. In this case the question arose as to whether the service was a sufficient service within Or. 67 r. 2, Rules of the Supreme Court in England. The said rule lays down "All . . . summons . . . shall be sufficiently served if left . . . at the address . . . . with any person resident or belonging to such a place . . ." When the summons was taken out for service at the address, there was nobody else but house-keeper who refused to accept any of the documents. Thereupon the summons was put in the letter box. Field J., held that leaving the summons in the letter box was not a good service within Or. 67 r. 2. R. S. C. It may be noted that in this rule the word used is "left" as in our rule 25 where the word used is "leaving with". I hold therefore that the summons in question was not served on the petitioner as required by the rules of this Court. 7. When the application was made before me on the 18th the affidavit of the service used in support of the application was made by the same Kauai Lal Chatterjee. There he stated that he left the summons with the clerk of Mr. Ghose and showed the original Master's summons to the said clerk when he accepted service but, refused to sign his name on the back of the original summons. On this affidavit I was satisfied that the summons was properly served and I made the order. If the facts now disclosed regarding the service would have been before me, I would have come to the same conclusion that the summons was not served as required by the rules and I would not have made the order which I did. I shall therefore set aside the order of the 18th February, 1948. I do not propose to deal in detail about various other matters which have come out in evidence but I cannot help making some observations expressing my disapproval of the conduct of the petitioner. I do not find any justification on the part of the petitioner not to file his affidavit of documents, within 10 days granted to him by the Master, when the documents disclosed are only 3 in number unless it was only to gain time. I do not find any justification on the part of the petitioner not to file his affidavit of documents, within 10 days granted to him by the Master, when the documents disclosed are only 3 in number unless it was only to gain time. I do not see and justification either why no steps were taken by the petitioner when the Respondent's Attorney wrote the letter of the 6th February, 1948. Although on the 14th February, 1948, the summons was returned by the clerk of Mr. Ghose who must have come to know about its purport and must have communicated it to the petitioner in due course I do not see any justification why no enquiries were made on his behalf on the 17th February, 1948, and why must it have been left to the Respondent's Attorney to inform Mr. Ghose that the application was not made as no chamber applications were taken on that date. Mr. Ghose did not appear on the 18th February, when the ex parte order was passed, neither there is anything to show that other than writing the letter on the 18th February, enquiring whether any ex parte order had been made on the application on that day and if so what the nature of the order was any other enquiry was made in Court. I do not find any justification for this remissness unless the whole object of the Petitioner was to gain time. I shall therefore allow the affidavit of documents to be filed by the petitioner and order an expeditious hearing of the suit. Costs of the application will be costs in the cause.