9911796707
TMI Blog1965 (3) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... are a firm under the name and style of Calcutta Iron Steel and Non-ferrous Metal Works carrying on business at 22 Canning Street and its proprietor, Subodh. Gopal Bose of 5/2 Rammoy Road. 2. These three suits, in each of which the writ of summons is said to have been served on October, 13 1964, appear in my list for ex parte hearing, no leave having been obtained, within ten days from the aforesaid date of service, by the defendants to appear and defend them. The defendants at this stage pray for leave so to appear and defend, They allege that no writ or summons was served on them ever and that much later they came to know of the suits which their solicitor had seen for the first time on February 10, 1965, appearing in my Warning List of undefended suits. The defendants' petitions to that end are dated February 16, 1965. They took out Master's summons which was duly served in each suit on February 17 following. Their petitions apart, I have had before me the plaintiffs' affidavits affirmed on March 1, 1965, and the defendants' affidavits-in-reply affirmed on March 9 following. 3. Just as Mr. Roy, the learned counsel for the defendants, addresses me a little i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 of Order 5 will not do. I shall never accept such service, unworthy of credence on the face of it, and rest a solemn decree of the Court upon it--a poor specimen by all standards. Then, if Rules 17 and 18 of Order 5 are there--and the process-server's returns purport to come thereunder--Rule 19 is there too. I see a declaration in each of the three returns--a declaration made and subscribed by the serving officer. So, under Rule 19, I am under no obligation to examine him or to cause him to be examined. What is more, under Rule 19A of Order 5, inserted by this Court by virtue of its rule-making powers under Section 122 of the Code, I am bound to receive each of the three returns as evidence of facts as to the service of each summons. I do so. So what? Rule 19A does not prescribe that such evidence shall be deemed to be proof of service. It is just like any other evidence which it is open to me to accept or reject. I reject it. I have stated why. But I have not stated yet all I have to. To Rule 19 of Order 5 again. I may examine the process-server or cause him to be examined in view of the declaration he has made and subscribed in each return. I do not go that way. Because t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 13th October 1964 is mischievous and mala fide . What is more, such averment is true to their knowledge, as if all the three including that lady, Sona Devi, had accompanied the process-server to Subodh Gopal and 5/2 Rammoy Road on October 13, 1964. Nothing can be further from truth. Were they present, certainly they would have obliged the process-server by disclosing their names and putting their signatures too. So, the return of each summons falsifies itself. And I reiterate my finding as a fact thai the summons has not been duly served in each suit. 7. This then is the position. I owe it to Mr. Sinha to record that he does not question either my competence or authority to scrutinize the return of each summons, as I have done, and to hold as the result of such scrutiny lack of due service of summons. So, one way open to me is to direct fresh service in such manner as I think fit, just as Rule 19 prescribes, and just as I do in all such cases. If I do so, the defendants who are represented before me now by Mr. Roy may then come with a prayer for leave to appear and defend the suits within ten days from the date of fresh service. Rut why shall I take to that circuitous way wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decrees and then to come to Court for relief under Order 37, Rule 4, as Mr. Sinha rightly contends. But here there has been no service of summons, as I have held. Hence, no question of their remedy being barred arises. And their right remains. Instead of asking them to wait till fresh service and to exercise their right then by availing themselves of the remedy within ten days from the date of such fresh service, I shall grant them leave to appear, as prayed for, and shall ask them to exercise their right, right now, and to convince me that they are also entitled to the leave to defend the suits, as prayed for too. In so doing, I do not act contrary either to the Code of Civil Procedure or the Limitation Act. Indeed, the Limitation Act does not show its head here, for the simple reason that there has been no service of summons. 9. Now, to the authorities Mr. Sinha cites, though he makes it clear at the outset that there are none determining for me the exact point I am now seized of. In Madhub Lall Durgur v. Woopendranarain Sen ILR 1896 Cal 573, the defendant obtained on January 9, 1896, an ex parte order granting him leave to appear and defend the suit, on the basis of his stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not applicable here, nor Satya Charan Dey v. Calcutta Hardware and Engineering Co. (1938) 42 Cal WN 820 where Ameer Ali, J. granted leave to a partner to appear and defend the suit, after setting aside the decree, under O. 37, R. 4. 11. Two more cases cited by Mr. Sinha remain to be reviewed. One is P. N. Films Ltd. v. Overseas Films Corporation Ltd. AIR1958Bom10 where Chagla, C. J. speaking for the Court applied the residuary article, Article 181, of the previous Limitation Act, prescribing three years as the period of limitation, and not Article 164, prescribing thirty days only, to an application for setting aside a decree in a summary suit under Order 37. So his Lordship did, as Order 37 is a self-contained Order which deals not only with the right of the defendant to appear in a summary suit in which a decree has to be passed if leave to defend is not given to him, but also with the procedure to be followed if the defendant wishes to have a decree passed in a summary suit set aside . This has nothing to do with the problem before me. The other case is Mrinalini Dassi v. Surjendu Narayan Deb ILR 1956 Cal 197 where Chakravartti, C. J. (S. R. Das Gupta, J. agreeing ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
