Katsumata v Naidu (C.C. 106/1932) [1932] EACA 40 (1 January 1932)

## ORIGINAL CIVIL.

## Before GAMBLE, Acting J.

#### TAKESHI KATSUMATA (Plaintiff)

1) .

# C. V. NAIDU, trading as THE NAIROBI DIRECT FISH SUPPLY COMPANY (Defendant).

#### C. C. $106/1932$ ..

Civil Procedure Rules-Summons for final disposal-Order V., Rules 1, 5 and 7-Written statement, Order VIII, Rule 1.

Held (28-4-32): -That the discretion to issue a summons for final disposal is not restricted to Subordinate Courts, and further that the Court has inherent power to allow time for filing written statement in suits for final disposal.

Hopley for Plaintiff.

Modera for Defendant.

RULING. In this suit Col. Modera, for the defendant, asks that he be given fifteen days in which to file his written statement of defence and further submits that he has a right to this extention. He contends that under Order V there is no power to issue a summons for final disposal in the Supreme Court, but that this particular procedure is limited to subordinate Courts. He relies on Order V, Rulė 5, to support his contention. I do not think there are any merits in his submission. I consider the governing rule in respect to the issue and service of summons is Order V, Rule 1 (1), this Rule prescribes the two methods by which summons may be issued to a defendant. either (1) by directing him to enter an appearance within a specified time; (2) by directing him to appear and answer the claim on a date to be specified.

I consider Rule 5 is merely inserted to avoid delay in the prosecution of suits for petty amounts. Magistrates of a subordinate Court to avoid such delay and to avoid congestion of business have additional powers, namely, of directing that a summons *shall* be for final disposal.

I am supported in my view by Order V, Rule 5, of the Indian Code of 1908, and by the case of Tuljaram Harichand v. Sitaram Narayan, 38 Bombay at page 377.

I would add, for Mr. Modera's information, that should a suit set down for final disposal appear unsuitable for final disposal there would, I consider, be an inherent power in the Court to adjourn the suit on such terms as it thinks fit on the analogy of Order XV, Rule 4, of the Indian Act of 1908, which has not been embodied in our Act.