Research › Search › Judgment

Bombay High Court · body

2007 DIGILAW 957 (BOM)

TARDEO PROPERTIES PUT. LTD. v. BANK OF BARODA

2007-07-13

D.G.KARNIK, R.M.S.KHANDEPARKAR

body2007
R. M. S. KHANDEPARKAR, J. ( 1 ) THIS appeal arises from the judgment dated 20-12-1996 passed in Suit No. 1567 of 1987. By the impugned judgment, the suit has been sought to be decreed purportedly in exercise of powers under Order 8, Rule 10 of the Code of Civil procedure, hereinafter called as "the CPC". ( 2 ) THE respondents/ plaintiffs filed suit for specific performance of the agreements dated 10-8-1984. Under the said agreements, the plaintiffs had agreed to purchase 20 flats and 10 car parking spaces in the building known as "shirin Apartments" stated to have been constructed by the appellants/defendants in the property at Tardeo Road, Mumbai. It is the case of the plaintiffs that all the said agreements were registered under the provisions of law and the plaintiffs had paid to the defendants from time to time a total sum of Rs. 1,32,00,000/- towards the purchase price of the said flats and the parking spaces, besides, Rs. 1,01,500/- for the registration charges and Rs. 50,000/- towards the other legal charges. It is further case of the plaintiffs that the defendants were bound to obtain certificate from the concerned authorities and handover the possession of the premises. It is further case of the plaintiffs that the defendants sought extension from time to time on one pretext or the other but failed to keep their promise and as there was valid and subsisting agreements for sale of the flats and the parking spaces and since the plaintiffs were entitled for specific performance, the suit had to be filed. ( 3 ) WHEN the matter came up for hearing before the trial Court on 20-12-1996, only the plaintiffs Advocate appeared. As far as the defendants were concerned, neither they were present nor was any Advocate on their behalf. The Court recording that the defendants were duly served with the writ of summons, that they were represented by the advocate from time to time, and that they had failed to file the written statement, the plaintiffs were held to be entitled for judgment and decree under Order 8, Rule 10 of the CPC, and accordingly the suit was decreed as above. ( 4 ) IN terms of the decree, it has been declared that the agreements dated 10-8-1984 in respect of 20 flats and 10 car parking spaces, as described in the plaint, were valid, subsisting and binding on the parties and the defendants were directed to specifically perform the said agreements and to perform all their obligations under the said agreements and to convey the suit flats in favour of the plaintiffs within six months, while appointing Court Receiver in execution of the proceedings, also ordered the defendants to pay a sum of Rs. 35,85,123. 27 paise as the compensation for not obtaining the occupancy certificate and giving the possession of the flats and the parking spaces within the stipulated period and further directing the payment of interest at the rate of 10% per annum on the said amount from the date of filing of the suit till the date of delivery of possession, as also for payment of costs. ( 5 ) THE challenge to the impugned judgment is on the ground that the impugned judgment wrongly proceeds on the basis that the writ of summons was served upon the defendants when factually the defendants were never served with the writ of summons in the suit. It is the case on behalf of the appellants that though the Advocate for the appellants had filed appearance in the interlocutory applications filed in the suit, such an appearance does not amount to appearance in the suit itself so as to enable the Court to proceed under Order 8, Rule 10 of the CPC, it is their further contention that even if the advocate had filed appearance on behalf of the defendants in the suit itself, it would merely enable the plaintiffs under the Original side Rules of the High Court to serve the writ of summons upon the Advocate concerned but under no circumstances there can be either implied service of the writ of summons or waiver of the writ of summons merely by filing the appearance or vakalatnama by the Advocate for the parties in the proceedings. It is their further contention that the writ of summons is a process issued by the Court clearly directing the defendants to file written statement within the stipulated period and, therefore, even the plaintiffs by merely serving the proceedings upon the defendants cannot do away with the requirement of issuance of the writ of summons and the service thereof upon the defendants or their recognised agent and, therefore, in the absence of compliance of these requirements, there could not be an occasion to proceed under Order 8, Rule 10 of the CPC. According to the appellants, the service of writ of summons upon the defendants is a condition precedent for passing of decree for failure to file the written statement. It is their further contention that in relation to service of writ of summons, the provisions of the Original Side Rules would prevail and apply. Reliance is sought to be placed on behalf of the appellants in the decision of the Division Bench of this Court in (Indium india Telecom Ltd. , Bombay Vs. Motorola Inc. and another), reported in 2004 (2) Bom. C. R. (O. S.) 530 : 2004 (1)Mh. L. J. 532 and of the learned single Judge of the Calcutta High Court in (Bengal chand Co. Vs. Durga Sankar Gouri Sankar), reported in 1955 (1) I. L. R. Calcutta 119. ( 6 ) ON the other hand, it is the case of the respondents that the contention about non-service of the writ of summons and the absence of authority to the Court to pass a decree under Order 8, Rule 10 r/w Rule 5 of the CPC is purely an after-thought as the records disclose that the appellants were always ready to file the written statement but they did not file the same for one excuse or the other. This would apparently disclose that the appellants were fully aware of their obligation to file the written statement and absence of service of the writ of summons cannot be made an excuse to deny to the plaintiffs of the fruits of the lawful decree obtained by them, after following the due process of law. This would apparently disclose that the appellants were fully aware of their obligation to file the written statement and absence of service of the writ of summons cannot be made an excuse to deny to the plaintiffs of the fruits of the lawful decree obtained by them, after following the due process of law. It is their contention that when the appeal was filed, there was no ground raised about the absence of service of writ of summons and the records undisputedly disclose that the appellants had participated in the interlocutory proceedings in the said suit by filing the necessary vakalatnama of their Advocate and even the vakalatnama was filed in the suit itself. Being so and considering the provisions of the Original Side Rules, according to the respondents, the appellants had full knowledge about the date of hearing of the matter and their obligation to file the written statement and having failed to comply with the obligation, the impugned order having been passed in exercise of power under Order 8, Rule 10 of the CPC, there is no case for interference. Drawing attention to the Original Side Rules, the learned Advocate appearing for the respondents submitted that the Rule 84 thereof clearly speaks of proof of service of summons which evidently discloses that once vakalatnama is filed, it amounts to waiver of service of writ of summons and considering the provisions of Rule 88, the appellants were expected to file the written statement within 12 weeks from the date of filing of the vakalatnama. Having failed to comply with this obligation for more than five years, no fault can be found with the impugned order passed by the learned Single Judge. Reliance is sought to be placed in the decision in the matter of (Sangram Singh Vs. Election Tribunal, Kotah and another), reported in A. I. R. 1955 S. C. 425. In any case, it is the contention of the learned Advocate that the matter relates to the procedure to be followed by the Court in relation to disposal of the proceedings and the same does not relate to absence of jurisdiction to the Court to deal with the matter and hence there is no case for interference in the appeal. In any case, it is the contention of the learned Advocate that the matter relates to the procedure to be followed by the Court in relation to disposal of the proceedings and the same does not relate to absence of jurisdiction to the Court to deal with the matter and hence there is no case for interference in the appeal. ( 7 ) IT is now well-settled that section 129 of the CPC confers on the High Court the powers to frame rules to regulate the procedure on its Original Side with only limitation that the same must not be inconsistent with the Letters Patent, or other law, establishing the High Court in question and, therefore, it follows that the same should not be inconsistent with the body of the CPC. In other words the rules framed under section 129 of the CPC cannot be inconsistent with the body of the CPC though they may be inconsistent with the rules contained in the first Schedule of the CPC vide: (Shevaram thadaram Jaisinghani Vs. Indian Oil Corporation ltd.), reported in 1968 Mh. L. J. 748. It was held by the Delhi High Court in (M/s. Printpack Machinery Ltd. Vs. Jay Kay paper Congeters), reported in A. I. R. 1979 delhi 219 that: "the Original Side Rules were not an 'amendment made' or a 'provision inserted' in the code. They always existed as a separate body of rules. " Considering the law as settled above, the Division Bench of this Court in Motorola's case (supra) had clearly ruled that: "where rule has been made by the High Court under this section, the provisions of the Code do not apply. " it was further held that: "the amended provisions of Order VIII, Rule 1 would not apply to suits on the Original Side and such suits will continue to be governed by the Original Side Rules. " the decision in Motorola's case has been fully approved by the Apex Court in Indium India telecom Ltd. , Bombay Vs. Motorola Inc. and another, reported in A. I. R. 2005 S. C. 514. ( 8 ) THE Chapter VI of the Original Side rules deals with the subject of writ of summons whereas the Chapter VII deals with the subject of written statement and counter-claim. Motorola Inc. and another, reported in A. I. R. 2005 S. C. 514. ( 8 ) THE Chapter VI of the Original Side rules deals with the subject of writ of summons whereas the Chapter VII deals with the subject of written statement and counter-claim. The Rule 69 provides that the writ of summons to appear and answer shall be in one of the Form Nos. 8, 9 and 10 as may be applicable to the case with such variations as the circumstances of the case may require. The Rule 70 provides that the name and address of a party or the Advocate appearing for a party shall be stated in every writ of summons, witness summons, notice of motion, chamber summons, notice, warrant and every process of the Court issued at the instance of such party or Advocate. The Rule 74 provides that in suits other than matrimonial suits and summary suits the writ of summons shall require the defendant to file an appearance in person or a vakalatnama and a written statement of defence within twelve weeks from the service of the summonses upon him and to serve a copy of the written statement on the plaintiff or his Advocate on record. The Rule 75 (1)provides that the writ of summons in suits, other than matrimonial suits and summary suits, shall be made returnable on the day on which the suit is to be placed on board for directions is provided in sub-rule (2) of rule 75 which, in turn, provides that unless otherwise ordered, such suits shall be placed for direction on the board of the Judge in chambers on the first and third Tuesdays in a month during the sittings of the Court, sixteen weeks after the date of the filing of the plaint, if the defendant or all the defendants reside within the local limits of the Court and eighteen weeks after the date of the filing of the plaint, if any one of the defendant resides outside the said limits. The Rule 76 deals with the subject of mode of service of summons and provides that a writ of summons shall be served within the local limits of the Ordinary Original Civil Jurisdiction of the High Court by personal service or, if the plaintiff so desires, by registered post prepaid for acknowledgement. The Rule 76 deals with the subject of mode of service of summons and provides that a writ of summons shall be served within the local limits of the Ordinary Original Civil Jurisdiction of the High Court by personal service or, if the plaintiff so desires, by registered post prepaid for acknowledgement. Where the writ of summons is to be served at a place situate beyond the said limits, it may be served by registered post pre-paid for acknowledgement. An acknowledgement purporting to be signed by the defendant or an endorsement by a postal servant that the defendant refused service shall be deemed to be prima fade proof of service. In all other cases, the court shall hold such inquiry as it thinks fit and either declare the summons to have been duly served or order such further service as may in its opinion be necessary. The Rule 78 provides that no writ of summons or other process shall be served at the office of an advocate after 5:30 p. m. on week days. The rule 79 provides that a writ of summons need not be served on a defendant personally, if his Advocate undertakes in writing to accept service, and to file a vakalatnama. The Rule 84 deals with the subject of proof of service and provides that unless the Court shall otherwise order, the service of a summons to appear and answer shall be proved by the vakalatnama having been filed or when no vakalatnama has been filed, by evidence showing that the summons was served in the manner provided by the Code of Civil procedure and such proof shall ordinarily be by the affidavit of the bailiff and as to such matters as the bailiff cannot speak to of his knowledge of the person who attended the bailiff for the purpose of identification at the time of service, or of such other person or persons as can speak to the identity of the person served or to other matters necessary to be proved in respect of the service. ( 9 ) THE Rule 88 under Chapter VII deals with the matter relating to the time for filing appearance or vakalatnama by the defendant. ( 9 ) THE Rule 88 under Chapter VII deals with the matter relating to the time for filing appearance or vakalatnama by the defendant. The Clause (a) thereof provides that in suits where the written statement is called for by the writ of summons, the defendant shall file an appearance in person or a vakalatnama, as the case may be, within twelve weeks from the service of writ of summons. The Rule 90 provides for judgment for want of written statement and it states that an application for judgment for want of written statement shall be made by notice of motion, but no such notice of motion shall be issued before the date on which the writ of summons is returnable. On the filing of an affidavit of service of the notice of motion, the suit shall be set down on the daily board for the purpose of such application. The Rule 91 deals with the situation arising out of default in filing the written statement and it provides that if in a suit where there are more defendants than one, any defendant shall have failed to file his written statement if such be called for, within the time fixed in the writ of summons, or any time extended by order, and the suit has not been set down as undefended as against him, such defendant shall not be allowed to appear and defend at the trial except with the leave of the Court or the judge in chambers upon such terms as to the filing of his written statement, giving discovery, and the payment of costs of adjournment, as a condition precedent to leave to defend, or otherwise, as the Court or Judge may order or upon such other terms, if any, as the Judge may think proper. ( 10 ) TAKING into consideration the decision of the Division Bench in Motorola's case and plain reading of the above referred Rules on the Original Side, it is apparent that in order to enable the defendant to file the written statement, there has to be a writ of summons served upon the defendant, specifying the period within which he can file the written statement. Undoubtedly, such writ of summons can be served upon the Advocate for the defendant. Undoubtedly, such writ of summons can be served upon the Advocate for the defendant. Undoubtedly, the advocate for the defendant can certainly file his vakalatnama in the Court but by that itself it would not lead to the conclusion that the defendant is served with the writ of summons. Though the Rule 79 empowers the advocate to accept the writ of summons on behalf of the defendant, nevertheless, Rule 69 clearly requires the writ of summons to be issued in a particular Form and further rule 88 specifically speaks of the occasion to file the written statement only when the defendant is called upon to do so by service of writ of summons specifying the period within which the written statement to be filed. The requirement of law in terms of the rules on the Original Side, therefore, is that in order to enable the defendant to place the written statement on record, there has to be an order of the Court either in the form of writ of summons or specific order extending the time to file the written statement, same having not been filed after service of the writ of summons within the period specified thereunder. But in the absence of such writ of summons or order there could not arise an occasion for the defendant to file the written statement. Albeit it cannot be said that the defendant cannot volunteer to file the written statement but that by itself would not create any right in favour of the plaintiff to contend that moment the Advocate files vakalatnama on behalf of the defendant, the period for filing the written statement would commence and within twelve weeks therefrom the defendant must file the written statement. The Rules nowhere provide either expressly or impliedly in that regard. On the contrary, the Rules clearly suggest that the occasion for filing the written statement by the defendant could arise only after direction in that regard being issued by the Court, either in the form of writ of summons or by specific order and not otherwise, and duly served either upon the party or his/her Advocate who has filed the vakalatnama on behalf of such party, or made known to the party. ( 11 ) EVEN under the CPC, the position is not different. ( 11 ) EVEN under the CPC, the position is not different. The Rule 10 of Order 8 of the cpc specifically refers to Rule 1 being the precondition for invoking the power under the said provisions of law to pronounce the judgment on account of failure to file the written statement. In other words, unless the court is satisfied that there has been due compliance of the requirement of Rule 1 of order 8, there can be no occasion for the court to pronounce the judgment merely on account of failure on the part of the defendant to file the written statement. ( 12 ) IT is pertinent to note that the law on the point of non-applicability of Order 8, Rule 10 of the CPC to the proceedings on the Original side of this Court is well settled by the decision of the Division Bench in Motorola's case. As already observed above, this Court in Shevaram Thadaram Jaisinghani's case (supra) has clearly held that the rules framed by this Court on the Original Side can be inconsistent with the rules contained in the first Schedule of the CPC. Reading these two judgments of this Court along with the decision of the Apex Court in Motorola's case and taking into consideration the provisions of rules 89 and 90, the same would apparently disclose that the said rules are inconsistent with the provisions of Order 8, Rule 5 and rule 10 of the CPC. ( 13 ) THE Order 8, Rule 5 (2) of the CPC provides that where the defendant has not filed pleadings, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. The sub-rule (3) provides that in exercise of its discretion under sub-rule (2), the court shall consider as to whether the defendant could have or has engaged a pleader. The sub-rule (3) provides that in exercise of its discretion under sub-rule (2), the court shall consider as to whether the defendant could have or has engaged a pleader. Similarly, Rule 10 provides that where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. ( 14 ) AS regards Rule 5 (2), plain reading thereof and the reading of Rules 89 and 90 would reveal that the same is totally inconsistent with the latter rules. While under order 8, Rule 5 (2) failure to present the written statement or pleadings would empower the Court either to pronounce the judgment or require the plaintiff to prove the case, in case of failure to file the written statement on the Original Side, the Judge in the chambers will have to issue direction to fix the suit on board for disposal as an undefended suit, either on the same day or any other day as he may deem fit. That itself will not amount to saying that failure on the part of the defendant to file the written statement would empower the Court to dispose of the matter by pronouncing judgment on the basis of the facts contained in the plaint. On the contrary, in terms of Rule 89 the Court will have to fix the matter for disposal as an undefended suit. In other words, only option which would be available to the Court would be to ask the plaintiff to prove the case before the pronouncement of the judgment. In case the plaintiff desires to get the suit disposed of based on the averments made in the plaint, on account of failure on the part of the defendant to file the written statement, he is required to take out notice of motion in terms of Rule 90 and the same will have to be dealt with accordingly. In other words, the procedure which is prescribed under Rule 5 (2) of Order 8 is not similar to the one as provided under Rules 89 and 90 of the Original Side Rules. In other words, the procedure which is prescribed under Rule 5 (2) of Order 8 is not similar to the one as provided under Rules 89 and 90 of the Original Side Rules. In fact, they are not consistent with each other. As far as Rule 10, Order 8 of the CPC is concerned, since the law on the point of non-applicability of Order 8, Rule 1/rule 2 to the proceedings on the Original side is well-settled by the decision in motorola's case, for the same reason Rule 10 cannot be made applicable to such proceedings before the Original Side. ( 15 ) THE learned Counsel appearing for the appellants, therefore, is justified in contending that on the original Side, it is mandatory for the Court to issue writ of summons to enable the defendant to file the written statement. It is true that in terms of Rule 88, the written statement has to be filed within twelve weeks from the service of the writ of summons but the period of twelve weeks, as specified, commences from the service of the writ of summons and not otherwise. Being so, mere filing of the vakalatnama would not begin the period of twelve weeks for filing of the written statement nor the defendant of his own can file written statement, without the permission of the Court. It is not a matter of right for any party to the proceedings to place on record pleadings in the suit. The pleadings in the suit are allowed to be placed on record in accordance with the rules framed for that purpose and for taking on record the pleadings on behalf of the defendant, initially the issuance of writ of summons for that purpose is absolutely necessary. Undoubtedly, such a period can be extended by specific order in case the defendant fails to file the written statement within the specified period and further seeks extension of such period. ( 16 ) BY referring to Rule 84, it was strenuously argued on behalf of the respondents that the same discloses the commencement of period of twelve weeks for filing the written statement from the date of filing of the vakalatnama. As already seen above, Rule 84 speaks of the subject of proof of service of summons. It does not speak of the obligation of the defendant to file the written statement. As already seen above, Rule 84 speaks of the subject of proof of service of summons. It does not speak of the obligation of the defendant to file the written statement. Undoubtedly, once the dispute arises as to whether the defendant is served with the writ of summons or not, filing of vakalatnama can be a proof of service of summons but when the records clearly disclose that the writ of summons was never served, mere filing of the vakalatnama would not establish to the contrary, otherwise Rules 70 and 79 would be rendered redundant. ( 17 ) THE Rule 76 deals with the subject of mode of service of summons and provides that a writ of summons shall be served within the local limits of the Ordinary Original Civil jurisdiction of the High Court by personal service or, if the plaintiff so desires, by registered post pre-paid for acknowledgement. Where the writ of summons is to be served at a place situate beyond the said limits, it may be served by registered post pre-paid for acknowledgement. An acknowledgement purporting to be signed by the defendant or an endorsement by a postal servant that the defendant refused the service shall be deemed to be prima facie proof of service. In all other cases, the Court shall hold such inquiry as it thinks fit and either declare the summons to have been duly served or order such further service as may in its opinion be necessary. ( 18 ) THE Rule 445 of the Original Side Rules provides that the Sheriff shall execute the process of the High Court. He shall serve such process within the local limits of the Ordinary Original Civil Jurisdiction of the High court by his bailiff or if the party so desires by registered post pre-paid for acknowledgement. When the process is to be served beyond the said limits, the Sheriff shall serve the same by registered post pre-paid for acknowledgement. He shall serve such process within the local limits of the Ordinary Original Civil Jurisdiction of the High court by his bailiff or if the party so desires by registered post pre-paid for acknowledgement. When the process is to be served beyond the said limits, the Sheriff shall serve the same by registered post pre-paid for acknowledgement. ( 19 ) THE Rule 446 of the Original Side Rules provides that if it is found necessary or expedient to get a writ of summons served or other process executed within the local limits of the Ordinary original Civil Jurisdiction of the High Court by a person other than the Sheriff's bailiff, the Sheriff may appoint a person, nominated by the Advocate of the party, as his special bailiff for that purpose and in order to prevent any improper use or abuse of the process of the Court, the said advocate shall give an indemnity to the Sheriff for its proper service or execution to the satisfaction of the Sheriff. The Rule 449 requires the Sheriff to take note on every process the date on which it is lodged in his office. In other words, the service of writ of summons has to be through the office of the Sheriff. The records in the matter in hand nowhere disclose that any writ of summons was served upon the defendants through the office of the Sheriff. The certificate issued by the office of the Sheriff on 26-4-2000 clearly discloses that the office records of the Sheriff reveal that no writ of summons in the said suit was lodged in the office of the Sheriff. It is nobody's case that the defendants were served with the writ of summons by posts. Apparently, therefore, there was no service of the writ of summons upon the defendants in the suit in hand. ( 20 ) MUCH ado was made of the statement made on behalf of the appellants in their affidavit that the appellants were always ready and willing to file the written statement and even the written statement was prepared but it remained to be filed. ( 20 ) MUCH ado was made of the statement made on behalf of the appellants in their affidavit that the appellants were always ready and willing to file the written statement and even the written statement was prepared but it remained to be filed. Once we hold that there can be no obligation to file the written statement, in the absence of service of the writ of summons or order in that regard, question of merely because the defendants had prepared the written statement but did not file the same, it would not enure to the benefit of the plaintiffs to get the suit disposed of and certainly not under order 8, Rule 10 of the CPC. ( 21 ) BEING so, the suit could not have been disposed of in the absence of service of writ of summons as in the absence of service of writ of summons there was no obligation on the part of the defendants to file the written statement and certainly, under no circumstances, the suit could have been disposed of in terms of Order 8, Rule 10 of the CPC as the same have no application to the suits filed on the Original Side in this High Court. ( 22 ) IT was strenuously argued that there was no justification for the appellants/defendants not to file the written statement for a period of six years even though the appellants were fully aware of the filing of the suit and had participated in the miscellaneous proceedings in the said suit. The contention is totally devoid of substance. It is not the question of lapse of period, short or long, but the obligation to file written statement which will arise only when there is a writ of summons served upon the defendants or order in that regard made by the Court. In the absence of either of the things, mere lapse of long period would not enure to the benefit of the plaintiffs to get the suit disposed of in the manner it was disposed of by the impugned judgment. In the absence of either of the things, mere lapse of long period would not enure to the benefit of the plaintiffs to get the suit disposed of in the manner it was disposed of by the impugned judgment. ( 23 ) THE decision of the Apex Court in sangram Singh's case (supra) undoubtedly provides that too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should be guarded against, provided always that justice is done to both' sides lest the very means designed for the furtherance of justice be used to frustrate it. It also provides that laws of procedure are grounded on the principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect to heir lives and property should not continue in their absence and that they should not be precluded from participating in them. These observations were made in a case wherein the defendant was served, yet failed to avail the opportunity to defend the suit. It was, therefore, held that when the defendant has been served and has been afforded an opportunity of appearing then if he does not appear, the Court may proceed in his absence. The judgment nowhere holds that even without service of notice and without affording the opportunity to defend, the suit can be proceeded in the absence of the defendant. The service of the writ of summons being absolutely necessary for affording opportunity to the defendant to contest the suit, in the absence of compliance thereof, there cannot be an occasion to proceed ex parte against the defendant in a suit filed on the Original Side of this Court. The decision of the Apex Court in Sangram singh's case is of no help to the respondents to justify the impugned judgment. ( 24 ) THE decision of the Calcutta High Court in Bengal Chand's case (supra) clearly holds that it is the service of summons in accordance with law that gives jurisdiction to the court over the person summoned and, therefore, in the absence of service of summons court cannot assume jurisdiction to proceed ex parte against the person who has not been served with the writ of summons. ( 25 ) IT is also to be noted that in terms of rule 87 of the Original Side Rules if the writ of summons is not served within six months from the date of filing of the plaint, the prothonotary and Senior Master shall, unless good cause is shown, place the suit on the board for dismissal. The Prothonotary and senior Master is required to notify such suit on his board one week prior to the same being placed on the board for dismissal. The provisions of law comprised under Rule 87 clearly provide that the plaintiff can be nonsuited if he fails to get the writ of summons served upon the defendant within the period specified thereunder. This virtually discloses that the defendant is not under obligation to file the written statement unless the writ of summons is served upon him. In this view of the matter, there is no substance in the argument that the matter relating to the service of writ of summons pertains to the procedural law and that, therefore, non-compliance or any irregularity in that regard would not relate to the jurisdictional error. Failure to comply with the mandatory requirement of the service of writ of summons to enable the defendant to file the written statement cannot be said to be a mere procedural irregularity. The provisions of law essentially prescribe fetters on the power of the Court to proceed with the matter against the defendant in the absence of the service of the writ of summons. ( 26 ) FOR the reasons stated above, in the absence of service of writ of summons upon the defendants/appellants, the learned Single Judge could not have proceeded to dispose of the suit, and certainly not under Order VIII of the CPC, and hence the impugned judgment cannot be sustained and is liable to be set aside and the matter to be remanded, allowing the defendants to file the written statement and the Court to proceed to dispose of the suit thereafter in accordance with the provisions of law. ( 27 ) THE appeal, therefore, succeeds. The impugned judgment is set aside and the suit is restored. ( 27 ) THE appeal, therefore, succeeds. The impugned judgment is set aside and the suit is restored. The matter is remanded to the learned single Judge, while allowing the defendants to file the written statement within four weeks from today and further to enable the court to proceed with the matter thereafter in accordance with the provisions of law, as expeditiously as possible. No order as to cost. Appeal succeeded.