Calcutta High Court
Mahua Moitra vs Dipak Kumar Ghosh & Ors on 19 January, 2021
OD - 2
ORDER SHEET
APD 46 OF 2019
WITH
CS 361 OF 2012
GA 1 OF 2018
GA 1169 OF 2018
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
MAHUA MOITRA
Versus
DIPAK KUMAR GHOSH & ORS.
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
The Hon'ble JUSTICE MD. NIZAMUDDIN
Date : 19TH JANUARY, 2021.
Appearance:
Mr. S. N. Mookherjee, Sr. Adv.
Mr. D. Sarkar, Adv.
Mr. B. Kumar, Adv.
Mr. D. Sen, Adv.
...For the appellant
Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
Mr. A. K. Shaw, Adv.
Mr. P. Chakraborty, Adv.
...For the respondents
The Court: This is an intended appeal by one Mahua Moitra from
a judgement and order dated 30th April, 2018 passed by a learned single
judge of this Court dismissing the suit for non-prosecution.
First of all, this Court has to consider whether leave has to be
given to the intending appellant/applicant to prefer this appeal from the
said judgement and order.
This suit was instituted in the year 2012 by one Mukul Roy, a
member of the Trinamool Congress Party in a representative capacity for
all the members of the party alleging that a certain book which had been
written in 2012 by the defendant respondent contained highly libelous
statements against the leader of the party.
Mr. Mookherjee, learned senior advocate appearing for the
applicant/ intending appellant submits that the suit was instituted after
taking leave under Clause 12 of the Letters Patent read with Order 1
Rule 8 of the Civil Procedure Code. The suit was duly advertised after
such leave was obtained and became a representative suit.
He submitted that as would be apparent from the judgement and
order, the reason for dismissal of the suit was failure on the part of the
advocate-on-record for the plaintiff to lodge the writ of summons.
Learned counsel went on to add that subsequently, the plaintiff
left the said party and joined another party. This was contemporaneous
to the time when the suit was dismissed for non-prosecution. Hence, it
was clear that at that point of time the plaintiff had no interest in the
suit. More so thereafter.
Hence, another member of the said party be allowed to prosecute
the suit in place of the original plaintiff who should be transposed as a
defendant.
We are of the opinion that once leave was granted to the original
plaintiff to institute and prosecute the suit in a representative capacity,
considering the principles of Order 1 Rule 8 of the Civil Procedure Code,
the cause of action on which the suit was founded should not be allowed
to die for the reason that in all likelihood, he is not interested to
prosecute it.
For this reason, we grant leave to the applicant, namely, Mahua
Moitra to prefer this appeal.
Now, the question about the justification of the impugned
judgment and order. Chapter VIII Rule 6 of the Original Side Rules
prescribes a period of fourteen days to lodge the summons. It does not
contain a sanction that if the summons is not lodged within that period,
the suit would be dismissed. However, Chapter X Rule 35 of those rules
provides that for non-prosecution of a suit, it may be dismissed on that
ground.
It appears that an important provision in Order 1 Rule 8 was not
shown to his lordship at the time of delivering the impugned judgement
and order.
Order 1 Rule 8 (sub-rule 4) of the Code of Civil Procedure provides
as follows :
"(1)...........................................
(2)...........................................
(3)...........................................
(4) No part of the claim in any such suit shall be abandoned under
sub-rule (1), and no such suit shall be withdrawn under sub-rule
(3), of rule 1 of Order XXIII, and no agreement, compromise or
satisfaction shall be recorded in any such suit under rule 3 of
that Order, unless the Court has given, at the plaintiff's expense,
notice to all persons so interested in the manner specified in sub-
rule (2)."
The principle is that the representative plaintiff is not allowed to
abandon the suit or withdraw from it or enter into any agreement or
compromise unless notice of such intention is given to all the plaintiffs
and consent is obtained from the Court.
Where a suit is dismissed under Order IX Rule 8 of the Civil Procedure
Code for absence of the plaintiff, a fresh suit on the same cause of action
is barred under Order IX Rule 9. Order IX of the Code does not bar a
fresh suit if the suit is dismissed on account of failure to comply with any
procedure leading to non-service of the summons.
If you read Order IX of the code with Chapter 8 Rule 6 and Chapter X
Rule 35 of the Original Side Rules, even dismissal of a suit for non-
lodgment of the writ of summons within time does not preclude filing a
fresh suit on the self same cause of action.
In fact, in any of the cases provided under Order IX, the court has the
power to restore the suit if sufficient cause is shown. Therefore the power
to restore a suit dismissed on the ground of failure to take measures for
lodging the summons or service thereof, if sufficient grounds are shown,
also rests with the appeal court, if instead of making an application to
set aside the decree dismissing the suit an appeal is preferred.
In Tusnial Trading Company versus Himangshu Kumar Roy and
Ors. reported in 1985 (1) CHN 375, a Division Bench of this Court stated
that lodging of summons is usually entrusted with the clerk of the
plaintiff's advocate-on-record. For any lapse on the part of the clerk, the
plaintiff should not suffer. The following principles were enunciated in
paragraph 15 of that judgement :
"15. It has been submitted that Balai Lal Bose, a clerk of the
appellant's Advocates-on-Record whose duty was to take steps for
getting the writ of summons issued and lodging the same with the
Sheriff's Department for service upon the defendants has not filed
any affidavit. Surely the said Balai Lal Bose and the Advocates-in-
Charge of the suit should have filed affidavits in the instant case.
In the matter of filing the affidavit the decision is taken by the
Advocates-on-Record of the party. It is for them to advise the lay
client as to whose affidavit should be filed in the matter. Here we
also find some negligence on the part of the Advocates-on-Record
of the appellant. However, as stated earlier and as laid down in
the cases mentioned above of the Supreme Court the innocent
party should not be made to suffer for the negligence, laches
and/or misdemeanour of his lawyer. To repeat after handing over
the matter with necessary instructions to his lawyer and putting
him in funds there is no obligation of a party in the absence of
special circumstances to enquire from his lawyer as to whether
proper steps are being taken in the matter. After discharging his
obligation mentioned above a party in the absence of any special
circumstances may rest assured that all necessary steps would be
taken by his lawyer in the matter. In the facts and circumstances
of the instant case and also for the reasons that rather heavy
claim has been made by the appellant in the suit, the same
should not be dismissed solely on the ground of the negligence,
laches and/or default on the part of Advocates-on-Record of the
appellant."
The said principle was reiterated by a Division Bench of this
Court in the unreported judgement delivered on 15th September, 2016 in
APO No.330 of 1993, TCS 1 of 1989 in the case of Kotak Mahindra Bank
Ltd Versus Tarit Appliances & Equipment Pvt. Ltd (In Liqn) connected
with APO No.331 of 1993, TC 1 of 1989 Kotak Mahindra Bank Ltd
Versus Tarit Appliances & Equipment Pvt. Ltd (In Liqn).
Mr. Bikash Ranjan Bhattacharyya, learned senior advocate
appearing for the defendant/respondent tried to impress us that in the
proposed amended plaint, Mukul Roy was arrayed as a defendant. Since
he is still available and a party in the proceedings, there is no
requirement of substituting the applicant as the plaintiff.
In our view, after the impugned order, the appeal was not
preferred by the plaintiff. This gives us reason to believe that he is not
interested in prosecuting the suit.
Furthermore, a very substantial issue regarding the reputation of
a dignitary is involved in the suit. It should be tested out on a proper
trial.
It appears from the averments made in the application that the
community of interest represented by the original plaintiff represented at
the time of institution of the suit is now represented by the applicant and
not by the original plaintiff.
We grant prayer (a) and (b) of the application being GA No.1169 of
2018.
We set aside the judgement and order dated 30th April, 2018. We
restore the suit. We allow amendments to the plaint similar to the cause
title of the memorandum of appeal, the changes being insertion of
plaintiff for appellant and defendants for respondents.
Let the amendment to the plaint be carried out within four weeks
from the date of this order. At the same time, we grant leave to the
applicant to prosecute the suit in the same representative capacity as the
plaintiff.
Let advertisements in this behalf be inserted once in the Times of
India and once in Anandabazar Patrika in the format settled by the
Learned Registrar, Original Side, within six weeks of amendment of the
plaint.
Let a fresh writ of summons be issued and the amended plaint be
served on all the defendants.
The appeal (APD No.46 of 2019) and the connected application
(GA No.1 of 2018, Old GA No.1169 of 2018) are, accordingly, disposed of.
(I. P. Mukerji, J.)
(Md. Nizamuddin, J.)
A Dey
