Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 133 (CAL)

SUKHLAL CHANDANMULL (P) LTD. v. HARROW HALL

2019-01-29

MOUSHUMI BHATTACHARYA

body2019
JUDGMENT : MOUSHUMI BHATTACHARYA, J. 1. The issue in the instant application filed by the defendant is whether an application under Chapter XIIIA of the Original Side Rules of this court can be barred under Rule 3 on the ground of the written statement being filed on the same day as the summons taken out by the plaintiff in the Chapter XIIIA application. 2. The plaintiff has filed a suit against the defendant for a decree for eviction and recovery of khas possession of the suit property and for a decree on account of arrear rent and mesne profits. The summons of the suit was served on the defendant after which the defendant entered appearance on and issued a notice thereof to the plaintiff on the same day. The defendant contested the suit thereafter by filing a written statement almost simultaneously with the plaintiff took out a Master's Summons under Chapter XIIIA of the Original Side Rules of this court. 3. According to Mr. Sudip Deb, learned counsel appearing for the defendant/applicant, the application of the plaintiff under Chapter XIIIA is liable to be dismissed on the ground of limitation since the said application was filed after the prescribed period of ten days as provided under Rule 3 of Chapter XIIIA. Mr. Deb submits that the defendant informed the plaintiff of its having entered appearance in the suit by way of a letter dated 26th November, 2014, as prescribed under Chapter VIII Rule 18 of the Original Side Rules. According to him, the plaintiff should have filed its Chapter XIIIA application within ten days from the date of entering appearance by the defendant which the plaintiff failed to do and instead took out the summons under Chapter XIII on 9th December, 2014. The defendant filed its written statement on the very same day, i.e. on 9th December, 2014 and hence, the application filed by the plaintiff under Chapter XIIIA is not maintainable. Counsel takes the additional point that the plaintiff not having filed an opposition to the defendant's application on the point of maintainability of the Chapter XIIIA application, the defendant's stand has thereby not been controverted. In this connection, he places reliance on Order VIII Rule 5 of The Code of Civil Procedure, 1908 (CPC) that a denial has to be specific and shall be taken to be admitted otherwise. 4. Mr. In this connection, he places reliance on Order VIII Rule 5 of The Code of Civil Procedure, 1908 (CPC) that a denial has to be specific and shall be taken to be admitted otherwise. 4. Mr. Sabyasachi Chowdhury, learned counsel appearing for the plaintiff, who is opposing the instant application, submits that when the Master's Summons of the Chapter XIIIA application was taken out, no written statement was served upon the plaintiff. According to him, a copy of the written statement was served on the plaintiff only after the service of the Master's Summons of the Chapter XIIIA application on the defendant. In the aforesaid fact situation, the time period of ten days under Chapter XIIIA Rule 3 is therefore to be construed from the date of filing of the written statement which means that the application falls within the time limit prescribed under Rule 3 and is accordingly maintainable. Counsel relies on Manik Lal Sharma Vs. Usha Beltron Limited reported in, (2004) 3 CalLT 271 (HC), a Division Bench decision of this court where it was held that for the time prescribed under Rule 3 of Chapter XIIIA, there must be a notice of entering appearance in the suit and simultaneously with the entering appearance, there must be filing of the written statement. According to Mr. Chowdhury, the time period of ten days would have been relevant if the defendant had filed its written statement simultaneously with entering appearance, i.e., both had been done on 26th November, 2014. According to counsel, the serving of written statement cannot make the application, which has already been taken out under Chapter XIIIA, infructuous and the time period of ten days would be relevant only if the written statement had been served upon the plaintiff and ten days therefrom had already passed, which is not the case in this matter. Counsel strongly defends the decision not to file an opposition to the instant application as according to him, no opposition is called for in view of the settled position in law. 5. I have considered the submissions of counsel appearing for the defendant in support of the application. Before I consider the law on the subject, a few dates are necessary to clarify the picture. On 14th November, 2014, the writ of summons was issued, which was served on the defendant on 18th November, 2014. 5. I have considered the submissions of counsel appearing for the defendant in support of the application. Before I consider the law on the subject, a few dates are necessary to clarify the picture. On 14th November, 2014, the writ of summons was issued, which was served on the defendant on 18th November, 2014. On 26th November, 2014, notice of appearance of the defendant was served on the plaintiff; on 5th December, 2014, the plaintiff affirmed the affidavit in the Chapter XIIIA application; on 9th December, 2014, the Master's Summons taken out in the Chapter XIIIA application was made returnable before the court on 23rd December, 2014; on 10th December, 2014, the Master's Summons in the Chapter XIIIA application was served upon the defendant at 1.05 p.m. and on the very same day, i.e., on 10th December, 2014 at 3.40 p.m., the defendant served a copy of the written statement on the plaintiff. The written statement was affirmed and verified on 9th December, 2014. From the aforesaid sequence, it appears that when the Master's Summons in the Chapter XIIIA application was taken out, no written statement was served upon the plaintiff. The written statement was served only after service of the Master's Summons on the defendant. 6. To understand what the Original Side Rules of this court provide for, Chapter XIIIA Rules 3 and 4 are set out below; "Rule 3. When application to be made.- Where the defendant in any suit which is within the terms of Rule 1 has entered appearance the plaintiff may, as regards any claim which is within the terms of Rule 1, on affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim, apply to the Judge for final judgment for the claimed together with interest, if any, or for the recovery of the land (with or without rent or mesne profits) as the case may be and costs: Provided that as against any defendant who has filed a written statement such application shall not be permissible unless the summons is taken out as in Rule 4 mentioned within ten days after receipt of notice of the entering of appearance under Chapter VIII, rule Rule 4. Application by summons.- The application by the plaintiff for judgment under Rule 3 shall be made by summons returnable not less than seven clear days after service accompanied by a copy of the plaint and affidavit". 7. The proviso to Rule 3 was clarified in paragraph 4.2 in Manik Lal Sharma, which laid down two conditions for application of the ten days time period. The relevant portion of paragraph 4.2 is set out below; "..............But, from Rule 3 proviso, it appears that the 10 days limit would be applicable in a case where the written statement is filed simultaneously with the entering of appearance. Such 10 days limitation will not be applicable where the entering appearance is not simultaneously or immediately followed by the filing of the written statement and Master's Summons can be taken out in an appropriate case at any time. In order to apply for 10 days limitation, two conditions are to be fulfilled- (1) there must be a notice of entering appearance in the suit and (2) simultaneously with the entering appearance there must be filing of written statement. Anything short of either of these two things the aforesaid rigidity period of 10 days will not be applicable..............." Hence, for the bar of ten days to apply, the written statement must be filed simultaneously with the entering of appearance of the defendant in a suit and as held in a later paragraph of that decision, the time limit contemplated in the proviso to Rule 3 would be applicable only in a case where the written statement has preceded the taking out of the Master's Summons and not otherwise. 8. This evidently is not the case before this court. The Master's Summons was taken out on 9th December, 2014 and the written statement was served upon the plaintiff on 10th December, 2014. These dates would appear from the endorsements on the relevant documents and are not disputed by counsel appearing for the parties. Since both Mr. Chowdhury and Mr. Deb have relied upon Manik Lal Sharma, the facts in that case should be briefly stated for a better understanding as to whether the ratio of Manik Lal Sharma would apply in the facts of this case. In Manik Lal Sharma, a preliminary objection was taken before the Division Bench with regard to the validity of a decree based on Rule 3 of Chapter XIIIA. In Manik Lal Sharma, a preliminary objection was taken before the Division Bench with regard to the validity of a decree based on Rule 3 of Chapter XIIIA. The appellant had contended that unless the Master's Summons under Rule 4 of Chapter XIIIA is taken out within ten days from the date of receipt of the notice of appearance where a written statement has been filed, the application under Chapter XIIIA would not be maintainable. In that case, the writ of summons was served on 22nd May, 2003; the defendant (appellant before the court) entered appearance and served notice on 25th May, 2003; the Master's Summons was taken out on 11th June, 2003 and the written statement was filed on 28th July, 2003. The appellant/defendant had contended that since the Master's Summons was taken out beyond ten days after the defendant entered appearance, the Chapter XIIIA application was not maintainable. In these facts, the Division Bench was called upon to decide whether subsequent filing of written statement would invalidate an application under Chapter XIIIA if the summons thereof was taken out ten days after receipt of the notice of appearance of the defendant. The issue focused on a construction of the proviso to Rule 3 (which has been set out above) and the court came to the conclusion that the time limit of ten days would be applicable only where the written statement has been filed before taking out of the Master's Summons in the Chapter XIIIA and not otherwise. 9. In the present case, as urged by Mr. Deb appearing for the defendant, the written statement was filed prior to the plaintiff's taking out the summons under Chapter XIIIA. It should be reiterated however that from the endorsements on the relevant documents, namely, Annexure 'A' to the supplementary affidavit affirmed by one Aditya Karnani on 16th December, 2014, it appears that although the written statement has been affirmed on 9th December, 2014, it was served on the plaintiff under a covering letter dated 10th December, 2014 at 3.40 p.m. 10. In the view of this court, the filing of a written statement would only become relevant when a plaintiff gets to know of such. In the view of this court, the filing of a written statement would only become relevant when a plaintiff gets to know of such. This is particularly true of proceedings for summary judgment, as under Chapter XIIIA, where a plaintiff has been given the right to apply for a quick resolution of the dispute in its favour subject to the conditions mentioned in Rule 1 of Chapter XIIIA. The position of the parties to apply for and defend the contemplated under Chapter XIIIA makes it clear that a plaintiff's right (and chance of success) to apply for summary judgment on the basis of a case which the plaintiff deems indefensible can irrevocably be impacted by a defendant putting its defence on record. 11. That the Rules treat the obligation of a plaintiff pre and post filing of a written statement in the context of a plaintiff's right to apply or summary judgment, would be clear from the different time-frames contemplated in the proviso to Rule 3 and Rule 4 of Chapter XIIIA. If the stand of Mr. Deb is accepted, a Master's Summons taken out by a plaintiff can be frustrated simply by a filing of a written statement by a defendant. This cannot be an acceptable construction since defendants would then be encouraged to affirm a written statement and serve the same upon a plaintiff as soon as the defendant receives the Master's Summons in Chapter XIIIA. It stands to reason that serving of written statement cannot make an application which has already been taken out under Chapter XIIIA infructuous. The logical construction should then be that the time period of ten days mentioned in the proviso to Rule 3 would be relevant only if the written statement has been served upon the plaintiff and ten days has already elapsed from the date of such service. The contentions of Mr. Deb would have been correct if the defendant had filed its written statement on 26th November, 2014 when the notice of appearance of the defendant was served on the plaintiff. In the instant case, the written statement was served on the plaintiff on 10th December, 2014, on the same day but after the Master's Summons in the Chapter XIIIA was served upon the defendant. In the instant case, the written statement was served on the plaintiff on 10th December, 2014, on the same day but after the Master's Summons in the Chapter XIIIA was served upon the defendant. It cannot be the intention of the framers of the Original Side Rules of this court that a Chapter XIIIA application would come to naught merely on the filing of a written statement after the summons in the former has been served on the defendant. This would make the entire basis of a summary procedure to recover debts or liquidated demands completely useless. In the view of this court, the qualification in the proviso to Rule 3 with regard to the time period within which the summons in a Chapter XIIIA application has to be taken out, would apply against a defendant "who has filed a written statement", (words used in the proviso to Rule 3) which means that the written statement must precede the taking out of the summons and not where the written statement has been filed (or served on a plaintiff) after a plaintiff has taken out the summons for a Chapter XIIIA application. 12. In view of the above discussion, the contention of learned counsel for the defendant that the time period of ten days should be taken from the date of notice of appearance of the defendant, i.e., 26th November, 2014 cannot be accepted. The defendant having served the written statement at 3.40 p.m. on 10th December on the plaintiff after having received the Master's Summons in the Chapter XIIIA application at 1.05 p.m. on the same day cannot take advantage of the proviso to Rule 3 and contend that the Chapter XIIIA application would be barred under the said proviso. The endorsements on the relevant documents mention the specific times when the said documents were served upon the other party. The application filed by the defendant being G.A. No. 3196 of 2016 for taking up the maintainability of the application filed by the plaintiff under Chapter XIIIA of the Original Side Rules of this court is decided in favour of the plaintiff. In the view of this court, the application filed under Chapter XIIIA is maintainable and no grounds have been made out by the defendant for ad-interim stay of the hearing of the said application. 13. In the view of this court, the application filed under Chapter XIIIA is maintainable and no grounds have been made out by the defendant for ad-interim stay of the hearing of the said application. 13. The contention of Mr Deb of the plaintiff having lost the right to controvert the position of the defendant in the absence of an affidavit in opposition cannot have a material bearing as far as the law on the subject is concerned. The sequence of service of the Summons in the Chapter XIIIA and the written statement would appear from the endorsements on the records and the plaintiff admitting/disputing the same in pleadings will not make any difference. 14. G.A. No. 3196 of 2016 is accordingly dismissed. There shall be no order as to costs. G.A. No. 3876, being the application under Chapter XIIIA, will be taken up for hearing after a fortnight. 15. As a post-script, the proviso to Rule 3 of Chapter XIIIA needs to be revisited. There is little clarity in the proviso as to what should be the appropriate outcome where a defendant affirms a written statement but does not take any steps to file or serve such written statement until after a plaintiff has taken out the summons under Chapter XIIIA. The language in the proviso is uncertain and amenable to various constructions which give rise to unnecessary proceedings and are contrary to the very object of Chapter XIIIA of the Original Side Rules of this court. Urgent Photostat certified copy of this Judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.