Badrilall Daga v. Howrah Industries — 1970 DIGILAW 235 (CAL)

JUDGMENT The judgment of the Court was as follows ; This is an application made by the defendants for inter-alia an order for recalling, rescinding and/or cancelling the order dated 12th May 1970 passed by the learned Master for the issue and service of the fresh writ of summons in the instant suit. The suit was filed on 22nd February 1968. On 6ih April, 1970 the plaintiff's solicitor wrote to defendants solicitor who was acting as such solicitor in Suit No. 249 of 1968 on behalf of the defendants asking him as to whether the defendant No.1 had entered appearance in the instant suit and asking him whether he would accept the service of a notice of motion taken out by the plaintiff's solicitor. The defendants' solicitor S. N. Deb wrote to the plaintiff's solicitor intimating that he would accept service of the notice of motion and pointed out that no writ of summons in the instant suit had been served on the defendants. From a copy of the notice of motion taken out in this suit by the plaintiff's solicitor on 26th March, 1970 and served upon the defendants' Solicitor, defendants' came to know that the plaintiff was applying for the appointment of a Receiver inter alia of the defendant's factory in this suit. In paragraph 3 of the said petition being the grounds of the said notice of motion the plaintiff averved that writ of summons in this suit had been duly served upon the defendants. Thereafter on searches caused to be made by the defendants' solicitor, the defendants came to learn on 13th April 1970 that the writ of summons in the suit was not served upon any of the defendants. The defendants pointed out the said fact of non-service in paragraph 6 of the' affidavit in Opposition filed by them. The defendants also pointed out that the writ of summons were returned by the sheriff unserved on 17th May 1969. In the affidavit in reply affirmed on 11th May 1970 the plaintiff denied the factum of non-service and again reiterated what he had stated in paragraph 3 of the petition. "After the said application for appointment of Receiver was disposed of the defendants made an application for dismissal of the suit on a notice of motion dated 19th May 1970. In the affidavit in reply affirmed on 11th May 1970 the plaintiff denied the factum of non-service and again reiterated what he had stated in paragraph 3 of the petition. "After the said application for appointment of Receiver was disposed of the defendants made an application for dismissal of the suit on a notice of motion dated 19th May 1970. The said application was made on the basis of the provisions of O.9 R.5 of the Civil Procedure Code. Thereafter, the defendants' Solicitor received a letter from plaintiff's Solicitor stating that summons had been caused to be issued by the Court 'and asking whether the Solicitor would accept service of summons on behalf of the defendants. Thereafter after causing searches to be made through their Solicitor the defendants came to know on or about 22nd May 1970 that the plaintiff had obtained an order for the issue of three fresh writ of summons by the Master, Original Side, of this Court, on 12th May 1970. This application has been made thereafter for the reliefs mentioned hereinabove including setting aside of the said order dated 12th May 1970 of the learned Master. 2. This application is, it appears, made by way of an appeal from the said order of the learned master under the provisions of the rules of Original Side of this Court (See Chapter 6 Rule 15). The grounds in support of this application as urged by Mr. Bankim Dutta are as follows: 1. The said application for issue of fresh writs was not made within the time prescribed under Order 9 rule 5 of the Civil Procedure Code and as such ought to have been dismissed and as such the learned Master had no power to make the order. 2. The learned Master is not a Court within the meaning of O. 9 R. 5 of the Code of Civil Procedure and so could not extend the time under the provisions of section 5 of the Limitation Act, 1963 3. In the case of (1) Luxmi Trading v. Shriram Gobindanarayan reported in (1) 61 CWN 212 the provisions of O.9 R. 5 came up for consideration before a Division Bench of this Court. In the case of (1) Luxmi Trading v. Shriram Gobindanarayan reported in (1) 61 CWN 212 the provisions of O.9 R. 5 came up for consideration before a Division Bench of this Court. Order 9, Rule 5 provides as follows : "O.9 R.5-(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 three months from the date of the return made to the Court by the office 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 cases 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." 4. In construing the word "Court" in the said case Chakravarti, C.J. observed as follows: "I have no doubt that where the Rule speaks of the Court making an order dismissing the suit 'the Court' contemplated can only be a judge and cannot be the Master. The Master cannot dismiss a suit. Where, however, the Rule is speaking of 'the Court' which may be satisfied that one or another of the specified reasons made it impossible for the plaintiff to serve the summons within the usual time, the expression means or at least includes the Master." Therefore, the learned Master must be taken to be a 'Court' within the meaning of the O.9 R.5 of the Code of Civil Procedure when he made the order extending the time to make the application for issue of three writs of summons and directed the issue of three writs of summons. Therefore, the first contention of Mr. Dutt must fail. 5. Therefore, the first contention of Mr. Dutt must fail. 5. It was held in the said case that the Court had no power to extend the time or direct the issue of writ of summons if no application was made for the same before the expiry of three months from the date of return of the unserved writ by the Sheriff. But the legal position on this aspect of the matter has changed since the decision was given in the said case by the coming into operation of the new section 5 of the Limitation Act of 1963 on 1st January, 1964. The said section is set out hereunder : S. 5. "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." 6. The said section came to be considered by another Division Bench of this Court consisting of G. K. Mitter and Masud JJ. in suit No. 1614 of 1963 (2) (Pannalal Ram Narayan & Ors. v. Bengal Nagpur Cotton Mills Co. Ltd. & Ors.) It was held in the said case that section 5 of the new Limitation Act is applicable to an application under O.9 R. 5 of the Code of Civil Procedure by virtue of the provisions of section 29(2) read with section 3 of the Limitation Act. 7. It should be pointed out that the new section 5 of the new Limitation Act is not in the identical terms with the old section 5. The new section 5 has been made applicable to all applications except application under any of the provisions of O. 21 of the C.P. C. 8. O.9 R. 5 of the Code of Civil Procedure does not exclude expressly the application of section 5 of the new Act. Thus section 5 of the new Act was applicable to the application before the learned Master. Therefore, learned Master had jurisdiction to entertain the application and to make the order dated 12th May 1970. The said order has been challenged before me only on the aforesaid two grounds. There is no challenge in the instant application to the exercise of discretion by the learned Master. Therefore, learned Master had jurisdiction to entertain the application and to make the order dated 12th May 1970. The said order has been challenged before me only on the aforesaid two grounds. There is no challenge in the instant application to the exercise of discretion by the learned Master. There is no challenge that the discretion as exercised by the learned Master was perverse. The ground taken in challenging the said order is the ground of jurisdiction only. 9. It was contended by Mr. B. N. Sen that no appeal has been filed against the said order of the learned Minster in accordance with the provisions of Chapter VI, Rule 15 of the Rules of the Original Side. An appeal now is time barred but I have the power to treat this application as an appeal and I do so. It was further contended by Mr. Sen that the order made under section 5 of the Limitation Act is not appealable and so the appeal does not lie. Mr. Sen relied on ILR (1956) Cal. 135. It was again held by the Division Bench in the aforesaid case of Pannalal Ram Narayan v. Bengal Jute Mill Co. Ltd. that an order under section 5 of the Limitation Act is not appealable, not being a judgment within the meaning of clause 15 of the Letters Patent, G.K. Mitter J. noted and considered the said case of (3) Brajogapal Barman v. Amar Chandra Bhattacharjee ILR (1956) Cal. 135. The said Division Bench decision is binding upon me. 10. Therefore, in any event, this appeal must fail. An application certainly can be made for setting aside an ex-parte order, made under S. 5 of the Limitation Act, but such application has to be made before the Court which had passed that ex-parte order. In the instant case the said ex-parte order was passed by the learned Master and the application for setting aside the said ex-parte order ought to have been made before the learned Mestar. 11. For all the aforesaid reasons this application must fail and is dismissed. 12. In the instant case the said ex-parte order was passed by the learned Master and the application for setting aside the said ex-parte order ought to have been made before the learned Mestar. 11. For all the aforesaid reasons this application must fail and is dismissed. 12. In view of the fact that the plaintiff made false statements with regard to the service of the writ of summons in his petition for appointment of a Receiver mentioned above and did also reiterate the same in his affidavit in reply I do not think that I should make any order as to costs. Therefore, costs of this application shall be costs in the cause.