WOMENÏ¿½S INDIAN ASSOCIATION REGD Vs. V MANGUDI

JUDGEMENT

(1.) THE defendant in O.S.No.5898 of 1986, First Assistant Judge, City Civil Court, Madras, is the petitioner in this civil revision petition, directed against the order of the lower appellate court holding that the petition in I.A.No.4611 of 1987 filed by the respondent herein, claiming benefits under Sec.9 of the Madras City Tenants Protection Act (hereinafter referred to as the "Act"), is in time. In order to appreciate the contro-versy between the parties, it would be necessary to refer briefly to the circumstances giving rise to these proceedings. On 25.8.1986, the respondent herein instituted O.S.No.5898 of 1986 against the petitioner praying for the relief of mandatory injunction directing the petitioner to restore electricity supply stated to have been cut off by the petitioner on 20.9.1985 without assigning any reason, on the footing that he is a tenant in respect of a piece of land measuring 1,350sq.ft., on a monthly ground rent ofRs.20 under the petitioner and the superstructure belonged to him. In the written statement filed by the petitioner, inter alia, it was stated that the respondent is not a tenant at all, but a trespasser and that he was not entitled to pray for the reliefs in the suit. In addition, in the written statement the petitioner projected a counter-claim for recovery of possession of the property from the respondent and prayed for the relief of ejectment of the respondent, after paying the requisite court-fee, therefor. Though the written statement to this effect containing a counter-claim for recovery of possession from the respondent was filed into court on 1.9.1986, it is seen that there is no endorsement on the written statement filed, for service of the copy of the written statement on the counsel for the respondent. Even so, a reply statement verified on 25.11.1986, was filed by the respondent on 17.12.1986 again, without any endorsement for service thereof, on the counsel for the petitioner in the trial court. THErein, the respondent repudiated the claim of the petitioner that he is a trespasser and reiterated that he is entitled to the relief of mandatory injunction for the restoration of the electricity supply to the premises in question. While matters stood thus, the respondent filed I.A.No.4611 of 1987 in the suit, O.S.No.5898 of 1986 on 25.2.1987, claiming the benefits of Sec.9 of the Act and praying that he should be permitted to purchase the land. That application was resisted by the petitioner, among others, on the ground that the application was barred by limitation.

(2.) THE learned first Assistant Judge, City Civil Court, Madras, found that after the filing of the written statement by the petitioner on 1.9.1986, the suit had been adjourned to 17.10.1986 and again, to 18.11.1986 for framing issues and subsequently, a reply statement was filed by the respondent on 17.12.1986 and that the respondent was fully aware of the counter-claim in the: written statement (regarding his ejectment) filed by the petitioner even on 17.10.1986, but had notj filed an application claiming benefits under Sec.9 of the Act within one month and therefore, the application filed on 25.2.1987, was barred by limitation. Aggrieved by this, the respondent preferred an appeal in C.M.A.No.106 of 1990 before the 6th Additional Judge, City Civil Court, Madras. THE lower appellate court found that the claim put forward in the written statement for ejectment as a counter-claim, did not tantamount to service of summons on the respondent, as contemplated under Sec.9 of the Act and that the respondent had also not been directly and inde-i pendently informed of the proceedings in eject-: ment initiated by the petitioner and, therefore, the conclusion of the trial court that the application was filed out of time, cannot be accepted. Ultimately, the lower appellate court allowed I.A.No.4611 of 1987 and directed the trial court to appoint a commissioner and ascertain the market value of the property and further directed the respondent to pay the amount so ascertained in one lump sum.

(3.) BEFORE proceeding to consider the contentions so advanced, it would be necessary to refer to a few undisputed facts. After the institution of the suit on 25.8.1986 and the service of summons in the suit on the petitioner, a written statement was filed by the petitioner on 1.9.1986. In that written statement, the petitioner, by means of a counterclaim, prayed for ejectment of the respondent on the ground that he is a trespasser. The written statement so filed does not bear any endorsement for service of a copy thereof on the counsel for the respondent in the trial court. Even so, the respondent had filed a reply statement on 17.12.1986, repudiating the claim made by the petitioner in the written statement by way of a counter-claim. It is thereafter.on 25.2.1987, the respondent filed an application claiming the benefits under Sec.9 of the Act. Under Sec.9 of the Act, on the institution of a suit in ejectment or proceeding under Sec.41 of the Presidency Small Cause Courts Act, 1882, by the landlord, the tenant, entitled to compensation under Sec.3 may apply to the court within one month, after the service on him of summons, for an order that the landlord shall be directed to sell, the whole or part of the land, for a price to be fixed by the court. From the aforesaid provision, it is clear that this is intended to apply to a case, where a suit is instituted by the landlord for the ejectment of the tenant, in which case, on the service of summons in the suit on the tenant, within thirty days from the date of such service, he may apply to the court praying for the reliefs under Sec.9 of the Act. In this case, the respondent had instituted the suit, O.S.No.5898 of 1986 and the claim for ejectment was made by the petitioner herein, in the written statement, by way of a counter-claim. The respondent had been represented by counsel in the suit, O.S.No.5898 of 1986. Under the provisions of O.3, Rule 3 of the Code of Civil Procedure, process served on the recognised agent of party shall be as effectual, as if the same had been served on the party in person, unless the court otherwise directs. Further, under O.3, Rule 5, C.P.C. process served on the pleader, who has been duly appointed to act in court for any party, shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the court otherwise directs, shall be as effectual for all purposes, as if the same had been given to or served on the party in person. Again, under O.8, Rule 6-A(2), Civil Procedure Code, counter-claim shall have the same effect as a cross suit and under Sub-rule 4 of the O.8. Rule 6-A, the counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. It is in the background of the aforesaid provisions relating to service and the nature of a counterclaim, that the need for service of summons as in a suit, for purposes of Sec.9 of the Act, has to be considered. In the Law Lexicon, reprint edition 1987, by P.Ramanatha Aiyar, at page 1236, the word 'summons" has been stated to be a process issued from the office of a court of Justice requiring the person to whom it is addressed to attend the court for the purpose therein stated. Essentially, a summons is a communication emanating from a court under the signature of the Presiding Officer and addressed to a person to appear before the court and answer the claim made against him in the suit or other proceeding. Primarily, therefore, the object of the issue of summons is to put the opposite party in a suit or proceeding on notice of the claim made in the suit or proceeding as well as the basis therefor and also to call upon him to meet the claim made. It is in this context, the observations relied on by learned counsel for the petitioner in Srinivasa Iyengar's case, (1964)1 M.L.J. 323, become relevant. Referring to the argument that the word 'summons" has got to be understood in the context as any process of court by which the possession of the tenant is actually threatened to be taken away, Jagadisan, J. pointed out that it may be that such construction is just and equitable but, that the word 'summons" clearly indicated summons in the suit and the reference to a 'summons" in Sec.9 of the Act is only to a suit. However, that decision did not deal with a situation as in the present case. While under O.8, Rule 6-A(4), Civil Procedure Code, a counter-claim shall be treated as a plaint, there is no provision made with reference to the service of summons as such, in a counter-claim made in a written statement, treating it as a plaint. When the purpose of service of summons is to put the opposite party to a litigation on notice of the claim made and to enable him to meet it by appearing before the court on a date specified, the service of a written statement containing a counter-claim, on the" counsel for the opposite party, as in this case, would, in my "view, be the same as service of summons in a suit, though in form a counter-claim. In this case, only in the course of the counter-claim made by the petitioner, the possession of the respondent was actually threatened and the service of the written statement on the counsel, as in this case, would be sufficient, in my view, to have put the respondent on notice of his threat to possession and the need to take steps to meet such a threat. Further, in (his case, though there is no endorsement as such regarding service of the written statement containing the counter-claim, on the counsel for the respondent before the trial court, yet, it is seen that on 17.12.1986, the respondent had filed a reply statement meeting the case set out in the written statement by way of a counter-cla im. Even in regard to the reply statement filed by the respondent on 17.12.1986, no endorsement had been obtained from the counsel for the petitioner (defendant in the trial court). However, the reply statement filed on 17.12.1986, could not have seen so filed unless, it be that a copy of the written Statement containing the counter-claim was also made available to the counsel for the respondent and the respondent after the service of the written statement filed by the petitioner on 1.9.1986, on the counsel for the respondent appearing in the trial court. That would be effective service of summons for purposes of Sec.9 of the Act. Other-vise, it is difficult to understand as to how the respondent could have filed the reply statement on 17.12.1986 without knowing the contents of he written statement containing the counter-claim regarding the relief of ejectment sought for by the petitioner against the respondent. What is further significant in this case is that the application claim-ng benefits under Sec.9. of the Act, had not been filed even within thirty days after the filing of the reply statement on 17.12.1986. To accept the" contentions of the learned counsel for the respondent, would be to hold that in cases like this, there could not be any time limit at all, for filing a petition claiming the benefits under Sec.9 of the Act. With reference to a counter-claim contained in a written statement, in the absence of any provisions in the Code of Civil Procedure for service of summons, it would follow that there is no period of limitation at all prescribed for filing an application, as the commencement of such period of limitation, would be thirty days from the date of service of summons, which cannot at all be effected. Though in Thoyammal's case, A.I.R. 1927 Mad. 113, it was held that service of summons should be personal, on the facts and circumstances prevailing in this case, the principle of that decision cannot be pressed into service by learned counsel for the respondent. On the facts of this case, it must be held that the earliest point of time when the respondent had knowledge of the threat held out in respect of his possession, was on 1.9.1986, when the written statement containing the counterclaim was made or atleast on 17.12.1986, when the respondent filed a reply statement. Computing the period of thirty days from either of the aforesaid dates, the application in I.A.No.4611 of 1987 filed on 25.2.1987 was barred by time. The civil revision petition is allowed consequently, the judgment of the lower appellate court is set aside and the order of the trial court will stand restored with costs.