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2002 DIGILAW 815 (KER)

Razack Trading Company v. J. K. Industries Ltd.

2002-12-12

K.PADMANABHAN NAIR

body2002
Judgment :- 1. The plaintiff in a suit for realisation of Rs. 20,35,8497- is the petitioner. The plaintiff filed the suit on 17.10.2002 after paying one tenth of the court fee. The learned Additional Sub Judge before whom the suit was filed ordered summons to the defendant as provided under 0.5 R.9(1) of Code of Civil Procedure. On the next day the batta for issuing summons ordered under 0.5 R.9(1) of the Code of Civil Procedure was paid and the suit was posted for return of notice on 16.11.2002. On 16.11.2002 the learned Additional Subordinate Judge was on leave. The case was called before the court of the Principle Sub Judge. According to the petitioner then only his Advocate came to know that in addition to the service of summons ordered under 0.5 R.9(1) of the Code of Civil Procedure the learned Sub Judge had also ordered to issue summons to the defendants by registered post with acknowledgment due as provided under R.9(3) of 0.5 of the Code of Civil Procedure also and directed the plaintiff to pay batta within three days. The steps for issuing notice by Registered post with acknowledgment due was not taken within three days as ordered by the court. Since the plaintiff did not pay the batta till 16.11.2002 inspite of the direction the learned Sub Judge rejected the plaint under 0.7 R.11(f) of the Code of Civil Procedure. That order is under challenge in this Original Petition. 2. Since no summons was issued to the defendants either under R.9(1) or under R.9(3) of 0.5 of the Code of Civil Procedure, I have dispensed with the notice to the respondent in this Original Petition. The counsel for the petitioner is heard. 3. The facts of the case shows that the plaint was filed on 17.10.2002. The learned Sub Judge ordered summons through court as provided under 0.5 R.9(1) of the Code and the requisite batta for issuing summons to the defendant under R.9(1) was paid. In addition to that the learned Sub Judge ordered summons by registered post with acknowledgment due and directed the plaintiff to pay the necessary batta for the same within three days. That direction was not complied with. In addition to that the learned Sub Judge ordered summons by registered post with acknowledgment due and directed the plaintiff to pay the necessary batta for the same within three days. That direction was not complied with. The question arising for consideration in this Original Petition is how far the learned Sub Judge was correct in rejecting the plaint under 0.7 R.11(f) of the Code on account of the failure to take steps to issue summons under 0.5 R.9(1) and 9(3) simultaneously. 4. The provisions for ordering service of summons is dealt with in S.27 to 29 and 0.5 of the Code of Civil Procedure. S.27 provides that where a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim within 30 days from the date of the institution of the suit. S.28 deals with the mode of service of summons where the defendant resides outside the State. S.28(1) provides that a summons may be sent for service in another State to such court and in such manner as may be prescribed by rules in force on that state. Sub-s. (2) of S.28 provides that upon receipt of the summons the court which receives the summons shall proceed to serve the same as if it has been issued by that court. Sub-s. (3) deals with the language of the summons. S.29 deals with service of foreign summonses. 0.5 R.9 to 30 deals with the service of summons. Before 1976 amendment R.9 of the parent Code contained two sub rules. In Kerala sub-r. (3) was framed by this Court which provided for service of summons through post under certain circumstances. The provision contained in sub-r. (3) of R.9 was repealed and in its place R.19 A was inserted by Act 104 of 1976. (see Mohan Traders v. A.V.M. Cattle and Poultry Feeds Manufacturing Industries (1979 KLT 866)). In this connection it is to be noted that in S.19A the wording contained is that "the court shall in addition to and simultaneously with the issue of summons for service in the manner provided in R.9 to 19 also direct the summons to be served by registered post." 0.5 underwent drastic changes with effect from 1.7.2002. S.15 of Act 46 of 1999 amended O.5 R.1, 2, 7, 21, 24 and 25. R.19A was omitted. S.15 of Act 46 of 1999 amended O.5 R.1, 2, 7, 21, 24 and 25. R.19A was omitted. R.9 was redrafted and in the place of R.19A R.9A was introduced. These rules underwent further amendment in 2002. S.6 of Act 22 of 2002 made further amendments to R.1, 9 and 9A. R.9 and 9A were redrafted. So with effect from 1.7.2002 0.5 R.9 reads as follows: "9. Delivery of summons by Court.- (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him in such manner as the Court may direct. (3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept, the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-r. (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court: Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff. (4) Notwithstanding anything contained in sub-r. (1), where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-r. (3) (except by registered post acknowledgment due), the provisions of R.21 shall not apply. (5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summers or had refused to accept the summons by any other means specified in sub-r. (3) when tendered or transmitted to him, the Court issuing the summon:- shall declare that the summons had been duly served on the defendant." R.9A read as fellows: "9A, Summons given to the plaintiff for service (1) The Court may, in addition to the service of summons under R.9, on the application of the plaintiff for the issue of a summons for the appearance of the defendant, permit such plaintiff to effect service of such summons on such defendant and shall, in such a case, deliver the summons to such plaintiff for service. (2) The service of such summons shall be effected by or on behalf of such plaintiff by delivering or tendering to the defendant personally a copy thereof signed by the judge or such office of the Court as he may appoint in this behalf and sealed with the seal of the court or by such mode of service as is referred to in sub-r. (3) of R.9. (3) The provisions of Rr.16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving (4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgment of service or for any reason such summons cannot be served personally, the Court shall on the application of the party, re-issue such summons to be served by the Court in the same manner as summons to a defendant." 5. In view of the provisions contained in S.15(b) (ii)(j) of Act 22 of 2002 the provisions of the Rr.9, 9A and 19A are not applicable to any proceedings instituted prior to 1.7.2002. In view of the provisions contained in S.15(b) (ii)(j) of Act 22 of 2002 the provisions of the Rr.9, 9A and 19A are not applicable to any proceedings instituted prior to 1.7.2002. Even prior to 1976 this Court had taken a view that the provisions contained in 0.5 sub-r (3) of R.9 the summons can be issued if the Court 'otherwise directs' instead of issuing summons under R.9(1) of 0.5 of the Code. The provisions contained in 0.5 R.19A which was deleted with effect from 1.7.2002 were in addition to and simultaneous to the ordinary mode of service. A reading of R.9A(1) makes it clear that the provisions contained in R.9A are simultaneous and in addition to the service of summons under R.9 of 0.5 R.9A contemplates an application by the plaintiff R.9(3) of 0.5. does not specify whether it is simultaneous to an addition to the ordinary mode of service provided under R.9(1) of the Code of Civil Procedure. But a reading of Sub-r (1) of R.9 shows that when the defendant resides within the jurisdiction of the Court the summons shall "unless otherwise directed' delivered or sent to the proper officer for service. So it is clear that the court is given a discretion either to order summons under R.9(1) or under R.9(3). A reading of R.9 and 10 of 0.5 shows that before the 1976 amendment the parent Code contained provisions for service of summons through the officer of the court only. Some States and High Courts amended R.9 and some other States and High Courts added a provision to R.10 so as to give the court power to order summons in any other way it thinks proper. The courts had power to issue service of summons by registered post as held in M.C. Dua v. Balli Mal (AIR 1959 Punjab 467). The principle laid down in M.G. Dua's case was followed in Bhagawati Cold & Silver Store v. H.I. & M. Works (AIR 1970 Punjab & Haryana 393). The courts had power to issue service of summons by registered post as held in M.C. Dua v. Balli Mal (AIR 1959 Punjab 467). The principle laid down in M.G. Dua's case was followed in Bhagawati Cold & Silver Store v. H.I. & M. Works (AIR 1970 Punjab & Haryana 393). In Firm Bhagat-Sham Singh v. Nur Khan (AIR 1927 Lahore 157) a Single Judge of the Lahore High Court after interpreting the proviso to R.10 of 0.5 held that the court cannot compel the plaintiff to deposit the process fee for the service of summons in the ordinary way and also to pay postal charges of service by registered post and the dismissal of the suit on failure to pay postal charges where the process fee paid is not justified. According to me this is the legal position after the amendment of R.9 with effect from 1.7.2002 and I am in respectful agreement with the principle laid down in Finn Bhagat-Sham Singh's case. 6. The legal position after 1.7.2002 is that R.19A, which was inserted by Act 104 of 1976 is omitted. R.9 is redrafted incorporating the provisions contained in old R.19A and R.9A is inserted. So after that date, the court shall either order service of summons through court under R.9(1) and in addition to and simultaneously to the ordinary mode order service of summons under R.9A also if the plaintiff files an application. If the court otherwise directs summons may be served by any one of the modes provided under R.9(3) and in addition and simultaneously to that mode under R.9 A also in which case the plaintiff has to meet the expense for both. But the court cannot order service of summons under R.9(3) also in addition to and simultaneously to the service of summons under R.9(1) of 0.5 of the Code of Civil Procedure, 7. The learned Sub Judge has not considered the changes brought out by the Amendment Act 46 of 1999 and 22 of 2002 in the manner of ordering service of summons. The order passed to issue summons under R.9(1) and 9(3) simultaneously is in excess of the jurisdiction vested in the court below. 8. The learned Sub Judge has not considered the changes brought out by the Amendment Act 46 of 1999 and 22 of 2002 in the manner of ordering service of summons. The order passed to issue summons under R.9(1) and 9(3) simultaneously is in excess of the jurisdiction vested in the court below. 8. The learned counsel appearing for the petitioner has argued that in view of the provisions contained in R.9(3) the court has no power to order service of summons to a person residing outside the jurisdiction of that court. It is argued that the provision contained in old R.19A was an independent Rule and not confined to the persons residing within the jurisdiction of the court ordering summons. It is argued that R.9 is confined to the service of summons to persons residing within the jurisdiction of the Court. It is true that R.9(1) is confined to the persons residing within the jurisdiction of the court ordering summons. But R.9(3) contains no such restriction. The provisions contained in R.9(4) make the position clear. R.9(4) of 0.5 provides that if the defendant resides outside the jurisdiction of the Court which orders service of summons and the court orders service of summons under R.9(3) (except by registered post with acknowledgment due) the provisions contained in R.21 shall not apply. The use of the expression 'except by registered post with acknowledgment due' is likely to create confusion. In this connection the provisions of R.21 is also relevant. It reads as follows: "21. Service of summons where defendant resides within jurisdiction of another court. - A summons may be sent by the Court by which it is issued, whether within or without the State, either by one of its officers for by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail Service or by any other means as may be provided by the rules made by the High Court), to any Court (not being the High Court) having jurisdiction in the place where the defendant resides." Before 2002 amendment summons to be served through another court was forwarded to that court either by one of the officers of this Court ordering service of summons or through post. Even at that time, it was not sent through registered post with acknowledgment due. Even at that time, it was not sent through registered post with acknowledgment due. After 1.7.2002 such summons can be send to another court through courier service, Fax or electronic mail service. That is the reason why the words registered post with acknowledgment due is exempted. If the argument of the counsel for the petitioner is accepted summons can be served on a person residing outside the jurisdiction of a court ordering service of summons through courier, Fax, electronic mail but not through registered post. The same will lead to an absurd position. According to me a court can order service of summons to a person residing outside its jurisdiction by registered post with acknowledgment due in view of the provisions contained in sub-r. (3) and (4) of R.9. So there is no force in the argument advanced by the counsel for the petitioner that service of summons by registered post can be ordered only if the defendant is residing within the jurisdiction of the court ordering summons. 9. The court below rejected the plaint since the petitioner did not take steps within three days from the date of order. Neither R.9 nor old R.19A of 0.5 enjoins that the batta is to be paid within three days. R.9A of 0.5 also does not provide that batta shall be paid within 3 days. The Supreme Court has considered S.27 of the Code of Civil Procedure in Salem Advocate Bar Association v. Union of India (2002 AIR SCW 4627 = 2002 (3) KLT 920 (SC)) and held that the party must take steps within 30 days and the summons need not be served within 30 days. It was held as follows: 'The object is to avoid long delay in issue of summons for want of steps by the plaintiff. It is quiet evident that if all that is required to be done by a party, has been performed within the period of thirty days, then no fault can be attributed to the party. It was held as follows: 'The object is to avoid long delay in issue of summons for want of steps by the plaintiff. It is quiet evident that if all that is required to be done by a party, has been performed within the period of thirty days, then no fault can be attributed to the party. If for any reason, the court is not in a position or is unable to or does not issue summons within thirty days, there will be, in our opinion, compliance with the provisions of S.27 once within thirty days of the issue of the summons the party concerned has taken steps to file the process fee along with completing the other formalities which are required to enable the court to issue the summons." So the court below went wrong In directing the parlies to take steps at the. first instance itself within 3 days when he has got a statutory period of 30 days for taking steps. Secondly even if there is a defect the court ought not to have straight away rejected the plaint. The Supreme court considered the failure on the part of the plaintiff to comply with the order of the court in Salem. Bar Associations' case. It was held as fallows:.... "Our attention has been drawn to 0.7 R.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 R.9 of 0.5. It appears to us that the said clauses being procedural would not require the automatic rejection of the plaint at the fust instance. If there is any defect as contemplated by R.11(e) or non-compliance as referred to in R.11(f) lite Count 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." 10. So even if there was failure on the part of the plaintiff to comply with the order, the court below ought to have granted reasonable time to the plaintiff to cure defects before rejecting the plaint. The petitioner has averred that he had already taken steps. 11. So even if there was failure on the part of the plaintiff to comply with the order, the court below ought to have granted reasonable time to the plaintiff to cure defects before rejecting the plaint. The petitioner has averred that he had already taken steps. 11. I am fully aware of the fact that an order passed by a civil court regarding the rejection of the plaint is given the force of a decree in view of the definition of the decree given under S.2(2) of the Code of Civil Procedure and the normal remedy available to the plaintiff is to file an appeal or review as held by a Division Bench of this Court in Gopalan Nair v. Bhaskaran (2002 (1) KLJ 1). The averments in the Original Petition shows that a petition for review was filed and the same was dismissed. 12. Since the suit was filed after 1.7.2002 provisions contained in old R.19A of 0.5 is not applicable to this case and the order passed is one in, excess of fine jurisdiction vested in the court. That being the position I am of the view thai it is not necessary to compel the petitioner to resort: to the alternate remedy of filing the appeal and the illegality committed by the court below is to be corrected by invoking powers conferred on this Court under Art.227 of the Constitution of India. 13. In Rajendran v. Union of India (1996 (2) KLT 467) a learned single judge of this Court found that the supervisory jurisdiction under Art.227 of the Constitution is limited to see that an inferior court or Tribunal functions within its limits of its, authority and not to correct an error apparent on the face of the record much less an error of law. In Whirlpool Corporation v. Registrar of Trade Marks ((1998) 8 SCC 1.) the Supreme Court held as follows:? 'Therefore, the jurisdiction of the High Court in entertaining a Writ Petition under Art.226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation." In K. Sreedharan v. Thajudeen Koya and Ors. (1996 (1) KLJ 246) a learned single judge of this Court has found that a judgment rendered by a civil court having no jurisdiction can be interfered with under Art.226 of the Constitution. It was held as follows: "Normally, this Court will not be justified in interfering with the decree passed by a competent civil court in exercise of the extra ordinary jurisdiction of this Court under Art.226 of the Constitution. But such judgment and decree shall be passed by a competent civil court having jurisdiction to try the case. But, in this case, it can not be held that the Munsiff has jurisdiction to entertain and try the above case in the light of the statutory injunction contained in S.19(2) of the Act. Therefore, it must be held that such a judgment and decree can be interfered with this Court in the extra ordinary jurisdiction of this Court under Art.226 of the Constitution." In S. T. Distilleries v. Assistant Commissioner of Commercial Taxes (1999 (1) KLJ 506) a Division Bench held that an alternate remedy is not an absolute bar for maintainability of a Writ Petition under Art.226 of the Constitution. It was held as follows:? " Alternate remedy is not an absolute bar for the maintainability of a Writ Petition under Art.226 of the Constitution where the Writ Petition has been filed for the enforcement of any of the fundamental rights or where there has been violation of principles of natural justice or where the order or proceedings are wholly without jurisdiction." 14. In view of the well settled principles of law laid down by the Apex Court and this Court I am of the view that it is only just and proper to quash the order passed by the court below rejecting the plaint in exercise of power conferred on this Court under Art.227 of the Constitution of India and direct the court below to dispose of the plaint in accordance with law. In the result the Original Petition is allowed. The order passed by the learned Sub Judge in O.S. 140 of 2002 on 16.11.2002 rejecting the plaint under 0.7 R.11 of the Code of Civil Procedure is quashed. The Seamed Sub Judge is directed to dispose of the plaint in accordance with law.