- (1.) In this application under Article 227 of the Constitution of India the petitioners have challenged the Order No. 17 dated 10th June, 2011 passed by the Ld. 10th Bench, City Civil Court, Calcutta in Title Suit No. 5659 of 2009. By the said impugned order the Ld. Trial Court was pleased to hold as follows:- a) That the present petitioners, who are the defendants in Title Suit No. 5659 of 2009 filed an application on 15th December, 2010 praying, inter alia for condonation of delay in filing their written statement. Against the said application the present Opposite Parties, who are plaintiffs in Title Suit No. 5659 of 2009 filed their objection. b) The Ld. Trial Court observed that the suit was filed by the OP/plaintiff on 6th November, 2009 for declaration, permanent injunction and consequential damages. The Plaintiff no.1 sought a declaration that he is alone entitled to use the trade mark of Ray & Martin as well as 'Prosnobichitra', 'Uttarbichitra' and 'Bichitra' in respect of such business being carried out through his authorised persons/licensed users in relation to teaching manuals, books, channels, question papers, student guide books etc. The Plaintiff no.1 also sought a declaration and injunction that the defendants shall have no right to use such trade mark. C) Upon institution of the suit on 20th November, 2009 summons were issued upon the defendants. The records show that the summons were sent vide postal receipt no. 6369 on 20th November, 2009 by the Kolkata General Post Office. The summons were delivered on 23rd November, 2009. However, on behalf of the present petitioners/defendants it has been submitted that towards the end of June, 2010 the defendant no.1 received the copy of the summons of the suit along with the copy of the plaint and it was written on the summons that the date fixed for appearance was 9th March, 2010. The said summons were marked as Annexure B to the application filed by the defendants for condonation of delay in filing their written statement. d) Therefore, in the view of the Ld. Trial Court it was clear that on 20th November, 2009 the summons in the suit were issued upon the defendant no.1 requiring the defendant no.1 to appear in Court on and by 9th March, 2010 and the defendants admittedly received such summons on 23rd November, 2009. The Ld. Trial Court also took notice of the decision of the Hon'ble Apex Court in Kailash Vs. Nanhku & Ors., 2005 4 SCC 480which was relied upon by the defendants on the point that the provisions of Order 8 Rule 1 CPC are directory and not mandatory. Relying on Kailash the defendants prayed for an opportunity to contest the suit by filing their written statement. The defendants also relied upon a decision of this Hon'ble Court in Dilip Tarafdar Vs. Manika, 2006 1 CalLJ 202on the point that in the event time is extended for filing written statement, the Court is required to record reasons for the same. e) The Ld. Trial Court then took the view that in the light of the decision of the Hon'ble Apex Court in Kailash Vs. Nanhku , in exceptional cases it is possible for the Court to extend the time for filing written statement by examining in the facts of each case whether such exceptional circumstances exist which would justify the failure of the defendants to file written statement within the prescribed period. However, in the further view of the Ld. Trial Court in the facts of the present case it does not appear that the defendants have been able to make out an exceptional case justifying extension of time to file written statement. f) Discussing the facts on record, the Ld. Trial Court found that the defendants received the summons of the suit on 23rd November, 2009 and soon thereafter they ought to have taken steps to draft the written statement without waiting for any other date to cause their appearance in court. The Ld. Trial Court therefore held the view that there appear obvious laches on the part of the defendants to file their written statement within the prescribed date and hence such written statement cannot be accepted. Accordingly, the application filed by the defendants dated 15th December, 2010 stood rejected and the next date was fixed on 26th August, 2011 for ex parte hearing. Being aggrieved the defendants have preferred the present application being CO 2107 of 2011.
(2.) Shri Jiban Ratan Chatterjee, Ld. Senior Counsel appearing for the present petitioners/defendants has made the following submissions:- i) Drawing the attention of this Court to the application filed by the defendants for condonation of delay appearing at Page 16/Annexure 'P1' of C0 2107 of 2011 Shri Chatterjee has submitted that in the said application it is, inter alia, pleaded that on 6th July, 2007 date was fixed by the Ld. Trial Court for service return. On 6th July, 2007 the petitioner appeared in the suit by filing vakalatnama and prayed for extending the date for filing the written statement. The Ld. Trial Court then fixed 27th August, 2010 for filing written statement and admittedly such written statement was filed on the said date, i.e. 27th August, 2010. ii) It is further pleaded by Sri Chatterjee that on 26th November, 2009 the defendants received notice to show cause along with the copy of injunction application with annexures. However, no copy of the plaint accompanied the injunction application. That two separate copies of the injunction application were served and the defendant no. 1 not only accepted his copy of the same but also accepted the copy of the defendant no.2 in his capacity as the proprietor of the defendant no.2. Thereafter on receipt of copies of the injunction application the same was handed over to their Ld. Advocate for preparing the written objection and due to failure on the part of the Ld. Advocate to take timely steps, such written objection could not be prepared within due time. iii) That sometime around the end of June, 2010 the defendant no. 1 received a copy of the summons of the suit along with the copy of the plaint in which it was stated that the next date was fixed on 9th March, 2010 for appearance. The defendant no. 1 thereafter appointed a new advocate and upon proper enquiry came to learn of the fact that the interim order of injunction was made absolute on 12th May, 2010 due to non-appearance by their Ld. Advocate. The defendant no.1 also came to learn of the fact that the next date was fixed on 6th July, 2010 for SR & AD. On 6th July, 2010 the defendants appeared in the suit for the first time through their new advocates with the prayer for extending the time to file their written statement. In the above premises Shri Chatterjee argues that the next date was fixed on 27th August, 2010 for filing written statement and admittedly on the next date, i.e. 27th August, 2010 the written statement was filed. Shri Chatterjee further points out that it is the specific case of the defendants that neither the summons of the suit nor the copy of the plaint was served on 26th November, 2009. On 21st November, 2009 except the two copies of the injunction application no other summons or documents were received by the defendants till, the end of June, 2010. Therefore, Shri Chatterjee strongly denies the allegation that there were intentional laches on the part of the defendants to take proper steps in accordance with law. Shri Chatterjee also denies that there was a deliberate delay in filing the written statement or that such written statement is time barred. He strongly argues that the duty under law to file the written statement arises only after the summons in the suit, including copy of the plaint, have been served and received by the defendants. iv) Shri Chatterjee takes this Court to the orders of the Ld. Trial Court passed from time to time. He submits that by the order dated 6th July, 2010 it has been recorded that a petition has been filed by the defendants praying for time to file the written statement on the grounds stated therein. Such prayer has been considered and allowed and the time was fixed on 27th August, 2010 for filing written statement. Shri Chatterjee further points to the fact that the order dated 6th July, 2010 was passed in presence of the plaintiffs. He also submits that the order dated 6th July, 2010 has never been challenged by the plaintiffs. v) Further taking this Court to Order No. 12 dated 27th August, 2010 Shri Chatterjee points out that the Ld. Trial Court was pleased to record that the defendant no1 has filed the written statement, although copy thereof has not been served. The plaintiffs also entered appearance on 27th August, 2010 and the Ld. Trial Court was pleased to fix 8th September, 2010 for acceptance of written statement. On 8th September, 2010 vide Order No. 13 it was recorded by the Ld. Trial Court that the plaintiffs have filed an objection petition praying for an order not to accept the written statement. The said objection was taken on record and the next date was fixed on 15th December, 2010. The defendants were directed to file their response to the objection petition of the plaintiffs by the next date. vi) Shri Chatterjee also takes this Court to Order No. 14 dated 15th December, 2010 by which it is recorded that the defendnants filed an application praying for condonation of delay in filing their written statement which was served on the plaintiffs. The said objection of the plaintiffs dated 8th September, 2010 along with the application of the defendants for condonation of delay was ultimately decided by the order impugned no. 17 dated 10th June, 2011 and time was refused to be extended for accepting the written statement. Shri Chatterjee submits that the Ld. Trial Court committed error by not accepting the facts with regard to the actual service of summons on the defendants. vii) Shri Chatterjee, therefore, strongly argues that exceptional circumstances have been made out by the defendants justifying extension of time to file written statement. Such exceptional circumstances pertain to the inaction on the part of their Ld. Advocate to take steps within due time. He also points out that no written objection was filed by the plaintiffs to the application taken out by the defendants for extending the time to file written statement. In support of his submission Shri Chatterjee relies upon para 45 of Kailash Vs. Nanhku & Ors and on in the matter of Zolba Vs. Keshao & Ors., 2008 11 SCC 769
(3.) Relying on both the above noted decisions Shri Chatterjee points out that the Hon'ble Apex Court was pleased to hold that where exceptional circumstances have been admittedly made out, the Court will be justified in extending the time to file written statement. Shri Chatterjee has also relied upon an unreported decision of this Court in CO 2688 of 2011 in the matter of Sachindra Nath Banerjee Vs. Ananto Das & Anr.;