Bijayesh Mukherji, J.
1. The interlocutory order I render now governs three suits under Order 37 of the Procedure Code. One is suit No. 1694 of 1964 by Srimati Sona Devi Pugalia residing at 146 Mahatma Gandhi Road. And it is for recovery of Rs. 7,369.82 paise inclusive of interest, on the foot of a hundi dated September. 23, 1963. Another is suit No. 1697 of 1964 by Hanuman Das Meheswari also residing at 146 Mahatma Gandhi Road. And it is for recovery of Rs. 12,161. 25 paise, inclusive of interest, on the foot of a hundi dated August 26, 1963. Still another is suit No. 1698 of 1964 by Pugalia and Company (Puralia in cause title of the plaint appears to be a typing error) 146 Mahatma Gandhi Road again. And it is for recovery of Rs. 9,517.50 paise. inclusive of interest, on the foot of a hundi dated August 26, 1963, too. The defendants in each of the three suits are a firmunder 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 in support of the leave prayed for, Mr. Sinha, the learned counsel for the plaintiffs, raises a preliminary point. The point is that far more than ten days having passed from October 13, 1964--the date of service of summons in each suit--the defendants have no locus standi to move the Court for leave to appear or to defend the suits. Mr. Sinha therefore asks me not even to hear this matter which, he submits, is barred at the threshold.
4. If in reality the summons has been served on October 13, 1964, there appears to be no answer to Mr. Sinha's contention. Ten days began to run from October 13, 1964. So, even on October 24, 1964, the defendants lost their right to apply for leave to appear and defend these suits under the summary procedure. And their petitions praying for such leave are dated so late as February 16, 1965. But the difficulty is that in reality the summons has not been served in any one of the three suits. I proceed to state why. Here is the pith of each return of service by a process server of the District Judge's Court, 24 Parganas:
On my own inquiry and on identification by persons of die locality, I find out 5/2 Rammoy Road and the second defendant Subodh Gopal too. He refuses to accept each summons by granting a receipt, even though I make him acquainted with the contents thereof, I therefore effect service by affixing the copy of summons etc. to the outer door of the drawing-room of his dwelling-house. What about the persons of the locality who had identified Subodh Gopal, the second defendant, and his house, and who were present too at the time of service? The process-server declares in his return:
'The persons present at the time of service did neither disclose their names nor did they put their signatures.'
as the official translation of each return in Bengali puts it. This is what draws largely on my belief. If persons of die locality were so good as to identify Subodh Gopal and his house and ' thus to help the process-server to that extent, a prudent man is entitled to hold mat they would have been equally good to disclose their names and to lend their signatures in the returns in token of having witnessed the service. And the standard in a court of law is the standard of a prudent man. See definition of 'Proved' in Section 3 of the Evidence Act. So, a superficial compliance with the provisions of Rules 17 and18 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 the very contents of the returns proclaim unreliability. And, under Rule 19, the Court 'shall either declare that the summons has been duly served or order such service as it thinks fit.'
5. Upon all I see, can I declare under Rule19 mat the summons has been duly served in each of the three suits? Reference may be made to a Bench decision of this Court in Kaniroda Sundari Dasi v. Nabin Chandra Saha, 19 Cal WN 1231: (AIR 1916 Cal 600) where Mookerjee and Newbould, JJ., though holding in the special facts obtaining mere that the requirements of Rule 17 were fulfilled, laid down the principle as to how Rule 19 should be looked at and applied:
'That rule (rule 19) imposes upon the Court the duty to satisfy itself that service has been properly effected, and the Court is authorised either to declare that the summons has been duly served or order such service as it thinks fit. Consequently, it is open to the Court, even when there has been a technical compliance with the provisions of Rule 17, to order service in another mode, if the Court thinks fit to do so in the interests of justice.'
Thus, in scrutinizing the returns I am doing no more than my duty. The returns have produced disbelief in my mind. Could I have even found technical compliance with Rule 17, it would have been open to me to order service in another mode. Be that as it may, even without more, I have little hesitation in declaring that the summons has not been duly served in any one of the three suits.
6. But there is a lot more. This brings me to the defendants petitions and affidavits averring inter alia that from October 10 to 21, 1964, Subodh Gopal along with members of his family was in his country home at Jaynagar to perform the Durga Pujah. So, he could not have been in his Calcutta residence at Rammoy Road on October 13, 1964, when the summons in each suit is alleged to have been served on him, Such averments in paragraph 14 of the defendants' petitions are traversed in paragraph 15 of the affidavits affirmed by Sona Devi Pugalia, herself the plaintiff in suit No. 1694, and by Hanuman Das Maheswari, himself the plaintiff in suit No. 1697, and in paragraph 16 of the affidavit affirmed by Bhagwan Das Pugalia. a partner of the plaintiff firm--Pugalia and Co.--in suit No. 1698. There they say in all solemnity that 'the allegation as to Subodh Gopal Bose not being in Calcutta on 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 when I see the defendants before me and when they know so well now that they have these three suits to answer, provided that I grant them leave to appear and defend them? What, after all, is the object of a writ of summons? The object is to make the defendants know that these suits have been filed against them. That object has been attained here. Still to issue summons over again, either in the usual way or in any other mode I think fit, will be a jejune formality doing good to nobody and increasing costs for nothing. So, I shall not go this way. I go instead another way, if I can. I see the defendants before me without any summons being served on them. In this state of affairs, can I proceed to hear them on their applications for leave to appear and to defend the suits? That is the question for decision.
8. Nothing that I hear from Mr. Sinha and I have heard from him a lucid address can lead me to hold that I cannot do so. To the bare provisions first of Order 37, Rule 2(2):
'....... .the defendant shall not appearof defend the suit unless he obtains leave from a judge .......... so to appear and defend'
and men to the provisions of Article 118 of the Limitation Act 36 of 1963 come into force on January 1, 1964, and governing the three suits before me instituted on September 10, 1964:
Description of applicationPeriod of limitationTime from which period begins to run
118.For leave to appear and defend a suit under summary procedure.Ten daysWhen the summons is served.
The right to apply for leave to appear and defend the suits is a right provided for in the Code of Civil Procedure (Order 37, Rule 2(2)). The Limitation Act surely docs not confer this right on the defendants. As is well known, the law of limitation, in absence of express enactment, neither creates nor destroys a right. It only bars the remedy. (See the observations of Sir John Beaumont in Atmaram Vinayak v. Lalji Lakhamsi, ILR (1940) Bom 127 at p. 134: (ATR 1940 Bom 158 at p. 160).
So, the right of the defendants to apply for leave to appear and to defend the suits is always there. Only if they would not apply so within ten days from the service of summons, their remedy would be barred. They would have to wait till the suits would culminate in 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, (1896) ILR 23 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 statement in the petition that he had received the notice of the service of summons on January 5, 1896. On the plaintiff's application the ex parte order was rescinded, as it was shown that the summons was served on December 23, 1895. Sale, J. refused to review the order rescinding the leave, eventhough the defendants then came prepared to show that there had been, in fact, no service of summons at all. But this is what the defendant had not stated in his original petition praying for leave as is clear from the following observations of Sale, J. :
'The proper time to determine questions of limitation relative to ex parte applications is when the application is made, and I do not think it is open to the defendant afterwards to attempt to escape the law of limitation by showing a state of things different from that appearing on the face of the original petition.'
In that context Sale, J. referred to Section 534 of the Code of 1877 (Rule 4, Order 37 of the present Code) and said that the question as to what took place upon the occasion of the service of summons was to be (aken into consideration on an application under Section 534 to set aside the decree, if made. In the cases in hand, no ex parte applications are before me. On the face of the original petitions here non-service of summons appears. Service I see is no service. Because I disbelieve it. On such service I shall found no decree. So the stage Order 37, Rule 4 contemplates will not be reached on the basis of such service. Thus I see nothing in this decision which can stop me from doing what I propose to do.
10. Quazie Mahmudar Rohman v. Sarat Chandra Dutt, (1905) 5 Cal WN 259, reveals the service of summons in a suit under chapter 39 of the then Code (corresponding to Order 37 now) on the defendant on September 1, 1900, and expiry of ten days therefrom during the long vacation, after which the Court reopened and sat on November 19, 1900. Had the defendant applied for leave that day, he would have been well within time. But he applied instead on November 20, a day too late, and Stanley, J. held with regret that he had no power to extend the time. Such has been the view of Chatterjee, J. too in Pulin Krishna Roy v. Susil Kumar Dey, 53 Cal WN 192. But I am not extending the time. All I am declaring under Rule 19 of Order 5 is that the summons has not been duly served in the suits. So these cases 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. Sur-jendu Narayan Deb, ILR 1956-1 Cal 197 where Chakravartti, C. J. (S. R. Das Gupta, J. agreeing) rejected the contention that Sub-rule (2) of Rule 2 of Order 37 would not apply, as that 'Sub-rule presupposed a case where the defendant had been served by summons' and as in thai case the defendant had not in fact been served so. In rejecting this contention, his Lordship observed:
'I should, there tore, think that apart front any question of defending the suit on the merits, the defendant in a suit under Ordre XXXVII cannot appear at any stage of the suit and for any purpose whatever without obtaining leave of the Court so to appear.
Besides, appearance prior to the service of the summons would also be appearance in the suit'.
The defendants' appearance before me in these suits prior to the service of summons will be appearance in the suits, no doubt. I say prior to the service of summons--because I hold, in reality there has been no service upon them up till now. But they pray for my leave so to appear--which the defendant in Mrinalini Dassi's case. ILR (1956) 1 Cal 397 did not do.
12. I therefore overrule the preliminary objection Mr. Sinha raises and grant the defendants the leave they pray me for--the leave to appear.
13. To do what I am doing is not 'to unsettle the settled practice of this Court', as Mr. Sinha apprehends. From the authorities cited, I see no practice on which may rest an astounding proposition that the expression: ten days from when the summons is served, lends itself to the meaning: ten days from when the summons is not served too. And not to do what I am doing will only mean--I say so at the risk of repetition--that I must direct fresh service within ten days of which the defendants can move me, as a matter of right, for the requisite leave. Why waste time and money then for such a barren process?
14. On merits of the prayer for leave to defend the suits, I govern myself by Santosh Kumar v. Bhai Mool Singh : 1SCR1211 and find, upon affidavits, a triable issue here. A triable issue, because prima facie there appear to have been monetary transactions by and between the parties, the hundis--one in favour of Hanuman Das Maheswari, another in favour of Sona Devi Pugalia, and still another in favour of Pugalia and Co., all of 146 Mahatma Gandhi Road--having been executed as so many collateral securities for the sums to be found due on adjustment of accounts. No doubt, the hundis recite inter alia: 'for value received in cash'. But at this stage all I have to ask myself is: should the facts alleged by the defendants be proved at the trial, will they 'afford a good, or even a plausible, answer' to the plaintiffs' claim? I am satisfied, they will. It is not for me therefore to withhold leave. It is not for me either to impose conditions which at the time of hearing I was keen on imposing. After having given the matter further and better consideration, I am clear, it will not be proper on my part to do so. It will be far more improper on my part to demand cash deposit which, I confess, I had hinted at one stage of the hearing. I therefore grant unconditionally the leave prayed for and issue the following directions. :
A. Written statements by March 26, 1965.
B. Discovery and affidavit of documents by March 26, 1965. Inspection forthwith.
C. The Suits do appear at the top of the list in the peremptory board on April 5, 1965 irrespective of any cause part-heard.
15. Costs will be costs in the cause. Liberty to mention. Certified for counsel.