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Narendra Nath Nandi Vs. Amiya Choudhury - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1478 of 1957
Judge
Reported inAIR1959Cal231,63CWN216
ActsCode of Civil Procedure (CPC) , 1908 - Sections 99 and 115 - Order 5, Rule 5; ;West Bengal Premises Tenancy Act, 1956 - Section 17(1)
AppellantNarendra Nath Nandi
RespondentAmiya Choudhury
Appellant AdvocateJnanendra Nath Bakshi, Adv.
Respondent AdvocateJyotish Chandra Banerjee and ;Amal Kumar Roy, Advs.
Cases Referred(Gobardhan Chandra Mondal v. Jiban Bala Nandi
Excerpt:
- debabrata mookerjee, j.1. this application under section 115 of the code of civil procedure and under article 227 of the constitution is directed against two orders dated 25-2-1957 and 9-5-1957 made by the second additional court of the munsif at alipore.2. the plaintiff opposite party instituted a suit for recovery of possession of certain premises let to the petitioner. the suit was brought on 16-8-1956 and the writ of summons served on the defendant on 31-8-1956 who entered appearance in the suit on 17-9-56. on 2-1-1957 the written statement was filed. an application was made on 7-1-1957 by the plaintiff opposite party under section 17 (3) of the west bengal premises tenancy act, 1956 for an order that the defence against delivery of possession be struck out.3. the learned munsif.....
Judgment:

Debabrata Mookerjee, J.

1. This application under Section 115 of the Code of Civil Procedure and under Article 227 of the Constitution is directed against two orders dated 25-2-1957 and 9-5-1957 made by the Second Additional Court of the Munsif at Alipore.

2. The plaintiff opposite party instituted a suit for recovery of possession of certain premises let to the petitioner. The suit was brought on 16-8-1956 and the writ of summons served on the defendant on 31-8-1956 who entered appearance in the suit on 17-9-56. On 2-1-1957 the written statement was filed. An application was made on 7-1-1957 by the plaintiff opposite party under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 for an order that the defence against delivery of possession be struck out.

3. The learned Munsif considered the matter and found that the defendant had failed to pay rent for the month of Chaitra 1362 B.S. He also held in effect that there was default in respect of rent for the month of Bhadra 1363 B.S. Thus there was failure according to the Munsif on the part of the defendant to pay or deposit the arrears of rent in accordance with the provisions of the West Bengal Premises Tenancy Act and in that view the defence against delivery of possession was directed to be struck out.

4. It appears an application was made by the defendant petitioner for review of the order directing the defence against delivery of possession to be struck out. This application was heard in due course and the learned Munsif came to the finding that no grounds had been made out which would justify reversal or modification of the order made earlier.

5. The defendant thereafter moved this Court and obtained the present rule.

6. On behalf of the petitioner it has been contended that the writ of summons which was served in this case did not comply with the requirements of the law; such a writ though in effect a command of the Code was incapable of being obeyed by having been expressed in an omnibus manner to do very many things; that only caused confusion and robbed it of its content. The complaint is that portions in the printed summons form, wholly inept in the case, have not been crossed out with the result that the petitioner did not know what he was to answer. Reliance has been placed in support of this contention upon a decision of Banerjee J. in the case of Madar Khan v. Kaiser Ali, 62 Cal WN 718 which held that the provisions relating to the issue of summons under Order 5, Rule 5 of the Code of Civil Procedure were mandatory and failure to comply with the requirements of the rule would not amount to service of a writ of summons within the meaning of Section 17 of the West Bengal Premises Tenancy Act, 1956.

7. If one may say so with respect, the principle enunciated in the decision is bound to commend itself to everyone connected with the administration of justice in the country. The learned Judge's reprimand has been timely. It is indeed desirable that the defendant should not be served with a piece of paper requiring him to do quite a number of things wholly inappropriate to the case concerned and perhaps irrelevant to the question raised in the suit.

8. Rule 5, Order 5 of the Code provides that the Court shall determine at the time of issuing the summons whether it shall be for the settlement of issues only, or for the ascertainment whether the suit would be contested, or for final disposal of the suit and the summons shall contain a direction accordingly. The terms of the rule require the Court to indicate with precision the purpose for which the writ is issued and there can be no question that it is highly desirable that a defendant should be told with precision what exactly is the purpose for which the writ has been issued. But that is about as far as one can go.

9. It is to be considered whether in the facts of this case, it would be necessary or proper to insist upon a literal compliance with the requirement of the rule. The writ of summons that was actually served shows that it was in common form but the different alternatives mentioned in it had not been crossed out. It has accordingly been argued on behalf of the defendant petitioner that it was not known for what purpose his attendance was required on the date mentioned in the summons.

10. It is true, the writ in this particular case was defective in the sense that it did not indicate for what purpose the attendance of the defendant was required on the day mentioned in it. Nevertheless, I think, in view of the fact that the writ was accompanied by a copy of the plaint, the defendant could not possibly have been left in doubt as to the nature of the suit, the grounds upon which it had been brought and the relief that was claimed. Merely because the writ of summons actually served did not specify with precision the purpose for which the attendance of the defendant was required on a particular date, would not, in my view, invalidate the proceedings. The defendant could not possibly have been misled that he had been sued and commanded to be present in Court on the date mentioned in the writ. The copy of the plaint with which he had been served, made abundantly clear the nature of the suit and the relief claimed against him. In those circumstances. I am not prepared to go to the length of saying that if the defendant is served with a writ of summons, not accurately filled in, he can raise the plea that such writ is not a writ of summons at all, so as to repel the provisions of Section 17 of the West Bengal Premises Tenancy Act. In my opinion, a bad writ cannot extinguish the cause of action or even the suit nor can such writ be pleaded in bar of proceedings under Section 17 of the Act.

11. I think the complaint loses much of its force in view of the words used in Section 17 of the West Bengal Premises Tenancy Act 1956. The words of the section are as clear as imperative. It says that on a suit being instituted on any of the grounds mentioned in Section 13 of the Act, the tenant shall, within one month of the service of the writ of summons on him, deposit in Court or pay to the Landlord the rent in respect of which default bas occurred. Thus a statutory duty is cast upon the tenant to make the deposit or the payment within a prescribed time and that time is to be calculated with reference to the date on which the writ of summons is served upon him. In essence the writ mentioned in Section 17 is no more and no less than mere notice that time runs from a particular date and ends with another, within which a certain act is required to be done. In this view the defect in the writ loses much of the mischief of being an inchoate document. In the context of Section 17 no question properly arises as to the purpose of the summons as long as it serves its real purpose of notifying time. Indeed the petitioner was under no illusion and knew well the purpose of the document, however, imperfectly drawn up, and had already made his defence A defective writ may have some relevance or significance in the context of regulating procedure of the suit itself; but even then, Section 99 of the Code steps in and cures the defect and saves the decree since a defect in the writ is no more than a mere irregularity in a proceeding in the suit, not affecting the merits of the case, or the jurisdiction of the Court.

12. The view I take seems to be not in consonance with the view taken of the matter by Banerjee J. in the case cited above. I think, having regard to the importance of the question raised the matter should be decided authoritatively by a Division Bench of this Court. Let the records be placed before the appropriate Bench.

13. I need not go into the merits of the case in view of the reference I have just made to the Division Bench.

S.C. Lahiri, J.

14. The question that arises for consideration in this case is whether the learned Munsif was right in striking out the defence of the defendant petitioner under the provisions or the West Bengal Premises Tenancy Act of 1956. The facts which are material for the purposes of this Rule are these : the petitioner is a monthly tenant under the opposite party in respect of a portion of premises No. 33/1 Russa Road at a monthly rental of Rs. 65/- according to the Bengali calendar. On August 16, 1956 the opposite party instituted a suit for ejectment against the petitioner on the allegation that the petitioner was a defaulter since the month of Pous, 1362. The petitioner entered appearance in the suit and filed a written statement denying that he was a defaulter. On January 7, 1957, the plaintiff landlord filed an application under Section 17(3) West Bengal Premises Tenancy Act of 1956 for striking out the defence of the petitioner against delivery of possession on the allegation that the petitioner had failed to pay or deposit in Court an amount calculated at the rate of rent last paid together with the Statutory interest at the rate of 8 1/3 P.C.P.A according to the terms of Section 17(1). After hearing both sides the learned Munsif found that the petitioner had failed to deposit or pay the rent for Chaitra, 1362 B. S. and also the Statutory interest for Bhadra, 1363 B. S. and in that view of the matter struck out the defence of the defendant petitioner against delivery of possession by an order dated February 25, 1957. There was an application for review of that order at the instance of the defendant and that application was also rejected by an order dated May 9, 1957. Against both the orders the defendant moved this Court and obtained the present Rule.

15. The writ of summons that was served upon the defendant is in the revised H. C. Form No. (P) 5 in Appendix B, Schedule I of the Code of Civil Procedure. It contains three alternatives which show that the summons is for (a) final disposal of the suit or (b) for ascertainment whether the suit is contested or not or (e) for answering the claim which is equivalent to settlement of issues. There is a note in the body of the summons to the effect that the unnecessary alternatives or the alternatives that are inapplicable to the facts of a particular ease should be struck out and above all Order 5, Rule 5 of the Code lays down in mandatory language that is the time of the issuing of summons the Court 'shall determine' whether the summons shall be for the settlement of issues only or for the ascertainment whether the suit will be contested or for the final disposal of the suit and the summons 'shall contain a direction accordingly'. In spite of these directions of Order 5, Rule 5 and the note in the body of the summons the writ that was actually served upon the defendant in this case contained all the three alternatives without any alternative being crossed out. The questions that have arisen are whether this failure to comply with the requirements of Order 5, Rule 5 C. P. Code and the direction in the body of the summons itself invalidates the writ of summons and whether the service of such a writ amounts to 'service of a writ of summons' within the meaning of Section 17(1) of the West Bengal Premises Tenancy Act of 1956. Banerjee, J. has answered the first question in the affirmative and the second question in the negative in the case of 62 Cal W.N. 718. Debabrata Mookerjee, J. taking a different view has referred this case to the Division Bench. If the view expressed by Banerjee, J. in the aforesaid case be accepted the petitioner is entitled to succeed and the order of the Munsif is liable to be set aside.

16. At the time of argument before us the learned Advocate appearing for the petitioner made an attempt to establish that the question of law does not arise for consideration because upon the materials on the record it should be held that the petitioner made no default whatsoever. I have already stated that according to the finding of the learned Munsif the defendant did not pay the rent for Chaitra 1362 B. S and the statutory interest for Bhadra, 1363 B. S. The materials upon which the learned Advocate relied did not, however, satisfy us that the findings arrived at by the learned Munsif were wrong and, moreover, the findings arrived at being findings of fact we are not prepared to allow the petitioner to challenge those findings in revision.

17. The fundamental question is whether non-compliance with the provisions of Order 5, Rule 5 C. P. Code invalidates the writ of summons. If Order 5, Rule 5 be held to be obligatory or imperative, anything done in violation of its provisions will be void; it, on the other hand, it is directory only, a failure to comply with its requirements will be a mere irregularity which will not invalidate the act done in the absence of prejudice. Banerjee, J. has held that the provisions of Order 5, Rule 5 are mandatory and a disregard of those provisions invalidates the act done. Order 5, Rule 5 is undoubtedly expressed in mandatory language and the word 'shall' occurs twice in that rule. The language of the Rule lends support to this conclusion. His Lordship also relies upon the decision of the Supreme Court in the case of Sangram Singh v. Election Tribunal, Kotah : [1955]2SCR1 , In that case the Supreme Court was considering the question whether a party who had failed to appear at earlier stages of a proceeding had a right to appear at a later stage and in considering that question it was examining the different provisions of the Code with a view to show that there was nothing in the Code which went against 'the cardinal principle that a party has a right to appear and plead on all occasions when that case comes on for hearing.'

The portion of the judgment which has been quoted by Banerjee, J. is merely a recital of the provisions of Order 5, Rule 5 and has no bearing on the question of the effect of non-compliance with Order 5, Rule 5. The judgment of the Supreme Court being out of the way we are left with the only question whether the mandatory language of Order 5, Rule 5 leads to the conclusion that a disregard of its provisions will invalidate, the act done.

18. The question whether a mandatory enactment must invariably be held to be imperative has engaged the attention of English Courts from the earliest times and it has been laid down in several cases that mandatory provisions may, under circumstances, be considered directory. 'No universal rule can be laid down' observed Lord Campbell (Lord Chancellor) in 1861 'as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the court of Justice to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute'. See Liverpool Borough Bank v. Turner, (1861) 30 LJ Ch. 379 at p. 380. Maxwell on Interpretation of Statutes (10th Edition) page 381 observes as follows :

'Where the prescriptions of a Statute relate to the performance of a public duty and where the invalidation of acts done in right of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or in other words, as directory only'.

This passage in Maxwell was quoted with approval by the Privy Council in Montreal Street Rly. Co. v. Normandin, (1917) A. C. 170 : (AIR 1917 PC 142) and the principle of the decision of the Privy Council was applied by the Supreme Court of our country in construing the provisions of Art. 320(3)(c) of our Constitution in the case of State of U. P. v. Manbodhan Lal : (1958)IILLJ273SC . In this case the Supreme Court was considering the question where Art. 320(3)(c) of our Constitution is mandatory. That Article is in the following terms :

'The Union Public Service Commission or the State Public Service Commission shall be consulted...... ...... ...... ......... (c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State, in a Civil capacity....In spite of the mandatory language of the Article the Supreme Court held that the provisions are directory. It is therefore established beyond doubt that the mandatory language of an enactment by itself affords no justification for the conclusion that its provisions are always imperative in the sense that any act done in violation will be invalid.

19. This negative conclusion, however, will not be sufficient for the disposal of the point and it has to be examined whether the provisions of Order 5, Rule 5 fall within the principle laid down by Lord Campbell or the principle approved by the Supreme Court in the case just referred to. The duty imposed by Order 5, Rule 5 requires the Court to determine at the time of the issuing of the summons for which of the three alternatives enumerated in the Form, it is being issued. This prescription therefore relates to the performance of a public duty by the court. It is equally clear that the plaintiff has no control over the Court which is entrusted with the performance of this duty. The invalidation of a summons issued in disregard of that duty would also work 'serious general inconvenience', because a litigant lulled into security after causing the writ to be properly served, suddenly finds that the writ was not a proper writ on account of the failure of the court to perform its statutory duty. The real question is whether the essential aim of the legislature was defeated by issuing the writ in the defective or irregular form. The essential aim of the legislature is to give the defendant an adequate and proper notice of the plaintiff's claim and to call upon him to answer or contest the claim. The question whether that aim was defeated can be looked at from two points of view (a) whether it was in fact defeated in the present case and (b) whether it could possibly have been defeated by the service of such a multipurpose or 'omnibus' writ. On the first point it would appear from the order sheet of the learned Munsif that on September 17, 1956 he recorded the following order :

'Plaintiff files hajira. Summons served. 'Defendant appears and prays for time to file written statement., To 5-11-56 for filing written statement'.

On 5-11-56 upon the defendant's application time to file written statement was extended to 20-11-56. Again on 29-11-56 time was extended to 27-11-56, on that date time was further extended to 11-12-56 on which date again time was extended to 2-1-57 and at last the written statement was filed on this last date. Upon these facts it is clear that in spite of all the three alternatives in the summons the defendant exercised his option in favour of the second alternative and communicated his intention of contesting the suit on the very first date of appearance; he had no misgivings about his rights and unequivocally asserted his right of contesting the suit on fiveoccasions. In this state of the record it is ridiculousto suggest that the essential aim of the legislatureto give the defendant a sufficient and proper noticeof the plaintiff's claim and to call upon him toanswer or admit the claim was in fact defeated bythe service of a multipurpose writ. Upon the factsof the present case, therefore, there is no doubtthat the essential aim of the legislature was not inany way defeated by the service of the irregularwrit, and consequently the failure of the learnedMunsif to follow the prescriptions of Order 5, Rule 5 ofthe Code amounted only to an irregularity of procedure which was waived by the defendant as soonas he communicated his intention of filing a writtenstatement on September 17, 1956.

20. Still, however, apart from the facts of the present case, can it be said that the service in which all the three alternatives are combined is no service in the eye of law on the ground that the defendant does not know why his attendance is required by the court ?

Banerjee, J. has observed in his judgment that, when Section 17 (1) of the West Bengal Premises Tenancy Act speaks of 'Service of a writ of summons', 'the emphasis is not only on the word 'service' but also on the word 'summons' what is to be served on the defendant is a summons according to law'. The learned Advocate for the opposite party has contended before us that the emphasis is only on the word 'Service'. I cannot accept this argument and I respectfully agree with Banerjee, J. that both the service and the summons must be according to law. On behalf of the petitioner it is contended that on the service of a summons in which all the three alternatives arc combined the defendant does not know what to do. He does not know whether his attendance is required for the final disposal of the suit In which case he is to attend with his witnesses; he does not know whether his attendance is required for ascertaining whether he will contest the plaintiff's claim in which case he will take necessary direction for filing written statement; nor does he know whether his attendance is required only for settlement of issues. Does the omission to specify the particular alternative for which his attendance is required render the summons an invalid document? To answer this question I shall have to examine the three alternatives more closely. The last alternative relating to framing of issues hardly presents any difficulty because no issues can be framed under Order 14, Rule 1 before the filing of a written statement and the defendant knows that since he has not filed any written statement his attendance is not required for framing of issues, The only other alternatives are that the defendant is to appear either for the final disposal of the suit or for stating whether he desires to contest the plaintiff's claim. The defendant is given his option of doing either of two things which are mutually exclusive. As soon as he exercises his option in favour of either alternative the other is automatically ruled out. On service of a summons like this the defendant is only required to make up his mind in favour of either of the two mutually exclusive alternatives and as soon as that has been done there is no further difficulty. It is not as if the defendant is required to do simultaneously many things which are inconsistent with each other; but the defendant is required to do only one thing which will exclude the other. In enacting Order 5 Rule 5 of the Code the Rule making authorities probably intended to spare the defendant the mental strain required for making the election at the initial stage of the litigation; but the fact that the defendant has to undergo the harassment of being put to election at the very first stage of the litigation on account of non-compliance with Order 5, Rule 5 will not render the summons either a meaningless or an invalid document. A composite writ in which all the three alternatives arc combined is therefore at best an irregular writ and not an invalid one, and will be accepted as valid in the absence of any prejudice to the defendant. It is possible to conceive of a case in which a defendant, served with a composite writ and bewildered by the variety of duties imposed on him, and unable to make up his mind, approaches the court for necessary directions and it is only in a case like that it can be said that no writ according to law has been served on the defendant; but that cannot be said in the present case where the defendant exercised his option at the first available opportunity and communicated his intention of contesting the suit on the very date of his appearance.

21. The learned Advocate for the opposite party relied on the provisions of Section 99 C. P. Code and that section has also been referred to by Deba Mookerjee, J. in the judgment by which he referred this case to the Division Bench. There are several difficulties in the way of applying Section 99 to the present case. In the first place, Section 99 expressly refers to the powers of the appellate court which we are not. In the second place, Section 99, contemplates reversal of decrees whereas in the present case we are concerned only with an order. In the third place what is challenged before us is not the order accepting service of summons, but an order which deals with the effect of service of summons. Consequently Section 99 will not apply in terms; but the principle underlying that section has been adopted by the authorities to which I have already referred, in construing enactments--expressed in a mandatory language.

22. If I am to refer to the scope of the Civil Procedure Code, I must note that it contains many provisions expressed in a mandatory language, the infringement of which does not invalidate the act done in violation thereof. For example Order 6, Rule 2 requires that 'dates, sums and numbers shall be expressed in figures' in the plaint and also in the written statement. If in a particular case a litigant chooses to mention the dates, sums and numbers not in figures but in words, can it be said that the pleading is invalid on that ground? There can be only one answer to this question and that in the negative. Similarly Order 20 Rule 3 requires that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and in spite of this mandatory language it has been held in the ease of Fort Gloster Jute Manufacturing Co. v. Chandra Kumar Das ILR 46 Cal. 978 : (AIR 1920 Cal 597) that the infringement of this Rule is an irregularity which is curable by consent or waiver. Instances may be multiplied but for fear of prolixity I refrain from doing so.

23. For the reasons given above with the utmost respect to Banerjee, J, I have reached the conclusion that the case of 62 Cal. W.N. 718 was not rightly decided and that the omission to follow the prescription of Order 5, Rule 5 does not invalidate the summons and consequently the service of a composite writ amounts to service of summons within the meaning of Section 17(1) of the West Bengal Tenancy Act of 1956.

24. I desire only to point out although non-compliance with Order 5 Rule 5 does not invalidate the summons so as to affect the rights of the parties it is nevertheless the statutory duty of the Court to determine at the time of the issuing of the summons for which of the three alternatives the summons is being issued and to strike out the alternatives that are inept or inapplicable. This Court will always view with disfavour any laxity of practice in this respect.

25. In the result I would discharge this rule; but in the circumstances I would make no order as to costs.

Renupada Mukheejee, J.

26. I agree with my learned brother that the Rule should be discharged, but I desire to say a few words about what is the effect of service of a writ of summons on a defendant which is not correct or regular in form, upon Section 17 of the West Bengal Premises Tenancy Act, 1.956. The material portion of Sub-section 1, of that section is that within one month of the service of the writ of summons on him, the defendant must deposit in court of pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto, up to the end of the month, previous to that in which the deposit or payment is made, together with interest on such amount at the rate of 8 1/3 per cent, per annum, Sub-section 3 of Section 17 of the above Act contains the penalty which the tenant incurs by reason of non-payment of arrears of rent. The penalty is that the court shall order the defence against delivery of possession to be struck out.

27. According to the provisions of Order 5, Rule 5, of the Code of Civil Procedure as amended by our High Court, a summons is issued on a defendant for one or other of the three following purposes :

1. For final disposal of the suit.

2. For ascertaining whether the suit would be contested, and

3. For settlement of issues.

The purpose for which a summons is issued, depends upon the nature and class of the suit. As a general rule of practice, a summons for final disposal of the suit is issued in simple eases, such as, suits for recovery of arrears of rent and suit, triable by a court of small causes. A summons for settlement of issues is generally issued in money suits of a comparatively high value and a summons for ascertaining whether the suit would be contested by the defendant is issued in suits involving questions of title and similar suits of a more or less complicated nature. A combined form setting out all the above three purposes has been prescribed by the Civil Rules and Orders of our High Court in Form No. (P) 5, Vol. II, p. 281 of the Civil Rules and Orders. This particular form was also used in the present case. There is a marginal instruction to retain in the form only that purpose for which the summons is actually issued and to strike out the remaining two purposes. This instruction was not followed in the present case with the result that all the three purposes for which a summons is issued remained on the writ. This was no doubt an irregularity. The irregularity was, however, due to the inadvertence Or the office of the munsif from which the summons was issued, The question is whether this irregularity Or defect in the summons is of such magnitude or importance as to render inoperative or nugatory the provisions of Section 17 of the West Bengal Premises Tenancy Art, 1956. In my opinion this cannot be so. To hold otherwise would be to take too technical and unpractical a view of the, whole matter regarding services of summons. The evident object of such service is to apprise the defendant of the suit of the plaintiff to enable him to appear in court to answer and defend the suit, if he so desires. Order 5, Rule 5 of the Code of Civil Procedure as amended by our High Court runs in the following terms:

'Summons to be either to settle issues or for final disposal. The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, for the ascertainment whether the suit will be contested or for the final disposal of the suit; and the summons shall contain a direction accordingly: Provided, that, in every suit heard by a court of Small Causes, the summons shall be for the final disposal of the suit.'

28. It is thus the duty of the Court to determine for what purposes the summons would be issued on the defendant. The purposes are three. If the Court or its officer fails to score through the unnecessary portions relating to the purposes of issuing the summons, it is not reasonable to hold that such omission or oversight on the part of the Court or its officer should affect the case of the plaintiff prejudicially, particularly if the defendant is not prejudiced by such omission or oversight. In this particular case the defendant did appear in Court on the day mentioned in the summons for his appearance and asked for time to file his written statement and that prayer wan allowed by the Court.

This would be clear from order No, 3 dated 17th September, 1956, passed by the trial Court. The order runs in the following terms :-

'Plaintiff files hazira. Summons served. Defendant appears and prays for time to file written statement. To 5-11-56 for filing written statement.'

The legality or propriety of the above order was never controverted by the defendant at any stage of the proceedings, nor does it appear that the defendant was in any way prejudiced by the defect in the summons. A defendant defends or contests a suit not with reference to anything contained in the summons but with reference to the plaint a copy of which containing the claim of the plaintiff is served upon him at the time of service of the summons. The defect or irregularity of the description with which we are concerned in the present case and which also arose in a case decided by Banerjee, J. in 62 Cal WN 718, is at the utmost a procedural defect which does not affect the merits of the case or the jurisdiction of the Court. In my opinion, the decision of Banerjee, J. in which it was held that the defect invalidates the summons and takes away the operation of Section 17 of the Premises Tenancy Act cannot be accepted as correct and the contrary view expressed by Sarkar, J. in a case (Gobardhan Chandra Mondal v. Jiban Bala Nandi, 63 Cal WM 71) must be held to be the correct view.

29. In this connection I may refer to Section 99 of the Code of Civil Procedure which runs in the following terms:--

'99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction, No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.'

30. It would be clear that a decree shall not be reversed or varied simply because of a procedural error, defect or irregularity unless the merits of the case are affected by such defect or unless the defect affects the jurisdiction of the Court. The section does not certainly apply in terms as has been pointed out by my learned brother in his judgment. But on the analogy of this section I may say that, a defect in the summons which does not prejudice the defendant in his defence should not be a ground for nullifying the summons or for rendering inoperative the provisions of Section 17 of the West Bengal Premises Tenancy Act 1956 regarding depositor payment of arrears of rent by the defendant after service of a writ of summons, where the onlydefect consists in an omission to score through some of the purposes for issuing the summons.


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