P.B. Mukharji, J.
1. This is a battle over technicalities.
2. It is an application by the defendant for dismissal of the suit under Order 9, Rule 5, Civil P. C. The notice of motion was taken out by the defendant firm on 4-9-1953 and by special leave made returnable on 8-9-1953.
The notice of motion seeks first for an order that the suit be dismissed and then asks that if the suit be not dismissed, the time for filing written statement be extended.
3. To appreciate the controversy the relevant facts should be set forth.
4. It is a suit for libel where the plaintiff claims Rupees One Lakh as damages against the defendant firm.
It was instituted on 7-9-1950. The writ of summons was issued on 15-9-1950 for service on the defendant. The returnable date of the writ of summons was 29-11-1950. Between 18-9-1950 and 25-6-1951, a period of about nine months, the plaintiff took no steps to have the summons served and he did not attend the Sheriff's office for such service.
The Sheriff, therefore, on 29-6-1951 made the following return:
'I do hereby certify that no one on behalf of the plaintiff company within-named attended at my office to have the within writ of summons served on the defendant company within-named. Dated 25-6-1951.'
5. The result, therefore, is that the Sheriff returned the writ of summons on 29-6-1951 un-served on the defendant. Then began another longer period of inaction on the part of the plaintiff. Between 29-6-1951 and 6-7-1953, a period of more than two years, the plaintiff took no steps to apply for any fresh summons.
On 7-7-1953 the plaintiff applied ex parte before the Master on a petition affirmed on the same day for:
(1) a fresh writ of summons,
(2) extension of returnable date by such fresh summons by two months from the issue thereof, and
(3) leave to serve the defendant by registered post.
The reasons placed in that petition to explain the plaintiff's inaction are talks of settlement and change of defendant's address in the mean time. No dates are given when such talks of settlement began nor when they failed. No date either was given in that petition stating when the defendant firm changed their address. On that petition the plaintiff obtained an ex parte order from the Master on the same 7-7-1953 for issue of fresh summons and leave to serve the summons by registered post.
6. This fresh summons this time was duly served on 31-7-1953 by post on the defendant firm and they entered appearance on 13-8-1953. The defendant thereafter searched the records of this suit and on 4-9-1953 took out this notice of motion for dismissal of the suit under Order 9, Rule 5, Civil P. C.
7. On these facts, therefore, Mr. R.C. Deb, learned counsel for the defendant, has urged that as the fresh summons was not applied for within the period of three months from the Sheriff's return of the writ of summons unserved on the defendant, the law requires that the court shall dismiss the suit.
Admittedly, between the return of the Sheriff of the first writ of summons unserved and the application for issue of a fresh summons more than three months, indeed more than two years had expired.
8. Order 9, Rule 5, Civil P. C. says:
(1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of three months from the date of the return made to the court by the Officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that-
(a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit. This is quite clear that if the suit is dismissed now, no fresh suit can be filed, because an action for libel filed to-day will be barred by limitation.
9. Order 9, Rule 5, Civil P. C., provides a rule of limitation. Its command is that when the summons is returned unserved, plaintiff's failure to apply for a fresh summons within three months from the date of such return of unsuccessful service will entail the penalty of dismissal of his suit. When that default occurs, the Court is left with no discretion but 'shall make an order that the suit be dismissed'. The limitation, therefor is three months. If within that three months the plaintiff applies for fresh summons, he has to satisfy the Court that either (a) he failed after using his best endeavours to discover the residence of the defendant who has not been served, or (b) such defendant is avoiding service, or (c) any other sufficient cause for extension of time. If he does so satisfy the Court, the Court 'may' extend the time.
This provision of the Civil P. C. underwent amendment in two significant particulars by the amending Act 24 of 1920, to which reference may be made to emphasise the significance of the change in the law. One was that the former period of one year was substituted by 'three months', and the other was that the previous discretionary power of the Court following from the former words 'may make an order' was replaced by a mandate upon the Court by the present words 'shall make an order'. The argument, therefore, is that as the application for fresh summons was made in this case more than three months after the Sheriff's return, the suit must be dismissed under Order 9, Rule 5 of the Code.
10. Mr. Sishir Mukherjee, learned counsel for the plaintiff, has argued four points in defence to this application. The first defence is that Order 9, Rule 5 of the Code does not apply to the Original Side of this High Court.
The second defence is that the Court, through its Master as delegate of its power in this respect,has already ordered a fresh summons, and unless that order of 7-7-1953 is set aside, the demand for dismissal of the suit cannot be entertained in this application.
The third defence is that Order 9, Rule 5 of the Code on a proper construction means that the inaction for the three months has no doubt to be explained on the ground stated there but that the application need not be made within that three months. In other words, it is argued that the expression 'within the said period satisfy the Court' means that the grounds of satisfaction must relate to explaining inaction for the crucial three months and not that the application itself for fresh summons be made within that period of three months.
The fourth defence is that as the defendants have entered appearance in the suit they have waived the limitation of three months as provided in Order 9, Rule 5 of the Code.
11. Taking up the first defence that of Order 9, Rule 5, Civil P. C. has no application to the Ordinary Original Civil Jurisdiction of this High Court, the argument is developed in this way. The procedure regulating the issue of summons is said to be laid down by the Original Side Rules in Chapter 8. That is argued to be the whole law on such procedure as applicable to the Original Side of this Court, and it is contended that such procedure is not regulated by Section 9, Rule 5, at all. Now, by Rule 3 of Order 49, it is found that Order 9, Rule 5 of the Code is not one of the rules excluded from the Original Side of the Chartered High Courts. Normally, therefore, Order 9, Rule 5 of the Code prima facie is applicable to the Ordinary Original Civil Jurisdiction of this Chartered High Court.
But then Mr. Mukherjee contends that the rules of the Chartered High Court prevail over the first schedule of the Civil P. C. including Order 9, Rule 5. Section 117, Civil P. C., while making the provision that the Code will apply to the High Courts, makes special exception in favour of these High Court rules by saying 'save as provided in this Part (9) or in Part 10 or in rules'.
12. Section 129, Civil P. C. in Part 10 grants powers to the Chartered High Courts to make rules 'to regulate its own procedure in the exercise of the Original Civil Jurisdiction as it shall think fit', the only limitation therein set out being that such rules shall not be 'inconsistent with the Letters Patent', which does not mean that they cannot be inconsistent with the Code.
Indeed, it has been held by Lort-Williams J. in -- 'Umeshchandra Banerji v. Kunjilal Biswas' : AIR1930Cal685 that they can be inconsistent with the Code and be valid notwithstanding such inconsistency. This High Court's powers to frame rules regulating its practice are originally to be found in Clause 38 of the Charter of 1774 and subsequently in Clause 37 of the Letters Patent of 1865. These Letters Patent make it plain 'that the said High Court shall be guided in making such rules and orders as far as possibleby the provisions of the Civil P. C.' This rule-making power was preserved by the Government of India Act and is preserved also now by the Constitution.
13. This defence, therefore, boils down to the small issue which may be put in this way. Chapter 8, Rule 8 of the Original Side Rules does not lay down any limitation of three months as in Order 9, Rule 5, Civil P. C. Chapter 8, Rule 8 of the Original Side Rules says that when on any amendment of any summons the 'Master is of the opinion' that a fresh summons shall be prepared, it will hetaken out and delivered to the Sheriff within fourteen days for service on the defendant.
Therefore, it is contended that Chap. 8, Rule 8, dispenses with the limitation of three months as provided in Order 9, Rule 5 of the Code. To assist this line of defence Mr. Mukherjee contends that the scheme of conduct of suit starting from the issue Of summons is given a special procedure in the Rules of the Original Side of this Court, which are in material particulars different from the provisions contained in the Civil P. C.
To illustrate this point learned counsel for the plaintiff makes a reference to the procedure prevailing on the Original Side of placing suits on the special list under Chap. 10, Rule 35 of the Rules of the Original Side. Formerly that rule provided:
'Suits and proceedings which have not appeared in the prospective list within six months from the date of institution may be placed before a Judge in chambers on notice to the parties or their attorneys, to be dismissed for default, unless a good cause is shown to the contrary, or be otherwise dealt with as the Judge may think proper.'
That rule has recently been amended and the present Rule 35 of Chap. 10 is:
'Suits and proceedings which have not appeared in the prospective list or in the warning list or peremptory list within six months from the date of institution, may be placed before a Judge in chambers, on notice to the parties or their attorneys, to be dismissed for default, unless good cause is shown to the contrary, or be otherwise dealt with as the Judge may think proper.'
It is, therefore, argued on the basis of these rules that they contemplate that a suit which has not appeared in the prospective list within six months of its institution could have been placed on a special list and then dismissed. If in a case where three months after the return of an unsuccessful service by the Sheriff the suit was liable to be dismissed under Order 9, Rule 5, then it is argued there was no point in placing a suit on the special list under Rule 35 of Chap. 10.
There is some force in this argument, but I do not think enough to take the matter out of the operation of Order 9, Rule 5. Chapter 10, Rule 35, may be read consistently with Order 9, Rule 5, Civil P. C, by taking the view that where Order 9, Rule 5, operates, effect should be given to it, and at the same time there are many other instances apart from plaintiff's failure to apply for fresh summons within three months from the return of an unsuccessful service where the High Court by its special rule 35 of Chap. 10 has given itself power to deal with suits where steps have not been taken for their diligent prosecution.
In coming to this conclusion, I am persuaded by the language of Section 117, Civil P. C., which says 'save as provided' in the rules made by the High Court either in Part 9 or Part 10, including Section 129, Civil P. C., relating to the rule-making power of the Chartered High Courts in respect of civil procedure, and by the language of Clause 37 of the Letters Patent of 1865 which says that the High Courts shall as far as possible be guided by the Civil P. C. in the matter of making its own rules.
The High Court could have made a rule dispensing with the three months limitation of Order 9, Rule 5, Civil P. C., either completely or by introducing any other special limitation. But the High Court Original Side Rules have not done so. I do not find from the rules of the Original Side of this Court any rule which expressly providesfor issue of a fresh summons even after three months from the date of the return of an unsuccessful service, nor do I find in the rules of the Original Side of the High Court any particular rule whose necessary implication is that the three months limitation of Order 9, Rule 5, Civil P. C., should not be applied to the procedure on the Original Side.
14. To my mind, this provision in Order 9, Rule 5, Civil P. C. is a very wholesome and salutary provision intended to activate laggard plaintiffs, who after presenting a plaint take no further interest in the suit which they have instituted, and the result very often is that there is a lot of dead wood provided by these idle claims which the plaintiffs do not choose to prosecute. Expedition in litigation is today a live problem and the legal climate is ringing with the cries for many real and fancied reforms. Here I find an existing rule of great efficacy to serve that purpose but forlorn and fitfully remembered so that its utility is not as frequently availed of as it should be. Unless therefore, I am satisfied by any of the rules of the Original Side of this court that it encourages sluggish plaintiffs to ignore the limitation of three months in Order 9. Rule 5, Civil P. C., I am not prepared to say that such Original Side Rules as there are at present either expressly or by necessary implication have that effect. While I assent to the general proposition that under the rule-making powers of the Chartered High Courts rules regulating the procedure of suits can be made by such High Courts which are inconsistent with and different from the rules laid down in the first schedule of the Civil P. C., and that when such rules are so framed they do prevail over the rules of the first schedule of the Civil P. C., I am of the opinion here that, there is no such rule on the Original Side which has expressly or impliedly excluded the operation of Order 9, Rule 5, of the Code. Here is an instance where therefore both the Rules of the Original Side as well as the rule of Order 9, Rule 5 of the Civil P. C. should apply as in -- 'Jagannath v. Bajrang' AIR 1921 Cal 208 (B).
15. The second defence that there has been no appeal from the order of the Master, and therefore unless that order is set aside this application cannot be entertained, does not appear to me to re fundamentally sound. It is quite true that under Chap. 6 Rule 12, the Master has delegated powers from the court. It is also true that under Rule 15 of Chap. 6 of the Original Side Rules a person affects ed by any order or decision of the Master can appeal to the Judge, and that rule is that such appeal should be made within five days or within such time as may be allowed by the Judge or the Master.
In this case the order for issue of fresh summons is an order of the Master and therefore an order of the Court. Technically speaking, Mr. Mukherjee is right that unless that order is set aside the suit cannot be dismissed, because rightly or wrongly an order issuing fresh summons has already been made in spite of Order 9, Rule 5, Civil P. C.
But the question is in what proceeding should that order be set aside. It is again true that in the present application it is not expressly said that it is an appeal from the Master's decision issuing a fresh summons. But in substance the whole of the petition is an appeal from that decision. The facts set out in the petition clearly indicate that hardly any ground was suggested before the Master in the ex parte petition of the plaintiff which would justify the issue of a fresh summons. The only main ground was talk ofsettlement. But then, as I have already indicated, when setting out the facts, no particulars as to when the talks began and when they failed are to be found in the petition. Prom the affidavits here it is patent that no prima facie proof of such talks of settlement is forthcoming, and certainly there is not even any correspondence suggesting any settlement. The entire story of settlement is completely denied by the defendants.
The change of address too as the second ground has hardly any merit, because that change took place as early as October 1951 and was a well-advertised change including notices to the post offices concerned.
Following Mr. Mukherjee's technicality to its logical conclusion all that may happen is that at best this application can be dismissed so that it may be brought up again in a proper form as an appeal from the Master under Rule 15 of Chap. 6. It is quite true that the five days have expired from the decision of the Master, which is ordinarily the time that the rule gives for such appeal. But then that time can always be extended by the Judge under that very same Rule 15. On facts like these it is the most proper case on which such extension should be granted, so that the course suggested by the learned counsel for the plaintiff only suggests a multiplicity of proceedings but whose ultimate results are bound to be the same. Justice demands, therefore, that the result should be produced without that multiplicity of useless proceedings.
Besides, this being a contested matter would in any event be beyond the competence of the Master to decide and would have come up before me. To meet a technicality with a technicality I will, therefore, treat this application not only as an application to dismiss the suit under Order 9 Rule 5, Civil P. C. but also treat it as an appeal from the Master's decision issuing a fresh summons and extend the time for such appeal under Chap. 6. Rule 15 to the date when the present Notice of Motion was taken out, and having done that, I allow the appeal from the Master. That completely meets the technicality raised by Mr. Mukherjee as his second defence to this application. I therefore set aside the Master's Order issuing fresh Summons after the time limited by Order 9, Rule 5, Civil P. C.
16. The third defence which has been urged is that the words 'within the said period' in Order 9, Rule 5 of the Code should be read out as qualifying the time within which the application for fresh summons has to be made, but as words qualifying the period of time for which explanation under (a) or (b) or (c) of Order 9, Rule 5(1), Civil P. C. has to be given.
I am unable to uphold this argument. The language appears to me to be clear to suggest that the satisfaction of the Court on the grounds stated in (a), (b) and (c) of Order 9, Rule 5(1) has to be achieved within the period of three months and not afterwards. The words are 'the plaintiff has 'within the said period' satisfied the Court'. According to my interpretation of Order 9 Rule 5 the position is that if there is a failure of the plaintiff to apply for a fresh summons and to satisfy the Court within such period of three months to condone such failure on the grounds stated in (a), (b) and (c) of Order 9, Rule 5(1), then the consequence is that the Court shall make an order that the suit be dismissed as against the unserved defendant.
In other words, the plaintiff must not allow the period of three months from the date of the return of the unsuccessful service to expire withoutmaking first an application and also secondly, without satisfying the Court within that period of time on the grounds stated in (a), (b) and (c) of Order 9, Rule 5(1) and if he does not do so then he incurs the penalty of dismissal thereunder. I am not unmindful of the fact that if the suit in this case is dismissed, the plaintiff will not be in a position to bring a fresh suit because such suit for libel is barred by limitation today. But that is a situation which the plaintiff has sought for himself by his own lack of diligence and non-compliance with Order 9, Rule 5 of the Code.
17. The last defence of waiver requires some consideration. It is true that the defendants entered appearance. They did so on 13-8-1953. Except searching the records of this suit as to how the summons in this suit of 1950 came to be served in 1953 and making this application on the basis of the results of such search, the defendants have neither filed any written statement nor taken any steps in the suit. The first act by the defendants in the suit therefore is to apply for dismissal as they have done. How could the defendants have made this application without entering appearance and apprising themselves Of the facts that the order for fresh summons was neither applied for nor obtained within three months of the date of return of the unsuccessful service.
A summons can always be waived by the parties concerned. But waiver as I have said so often is an intentional relinquishment of a known right. If the right is not known then I do not see how a person can be said to waive it. The defendants in this case before entering appearance and searching the records could not know whether the suit is liable to be dismissed under Order 9, Rule 5. Besides a defendant enters appearance in a suit for the purpose of defending himself and I consider that a plea under p. 9, Rule 5, Civil P. C. that the suit shall be dismissed is a part of such defence as any other point of limitation. I therefore fail to see how by entering appearance the defendants in this case can be said to have disabled themselves from saying that the suit shall be dismissed under Order 9, Rule 5, Civil P. C.
18. In my judgment all these four objections to the application must fail.
19. There will, therefore, be an order in terms of (a) and (b) of the Notice of Motion dismissing the suit and the plaintiff will pay the costs, if any, incurred in the suit including the costs of and incidental to this application.