Decided on September 29,1970



- (1.) The judgment of the Court was as follows:- This is an application made by the defendants for inter-alia an order for recalling, rescinding and/or cancelling the order dated 12th May 1970 passed by the learned Master for the issue and service of the fresh writ of summons in the instant suit. The suit was filed on 22nd February 1968. On 6th April, 1970 the plaintiff's solicitor wrote to defendants solicitor who was acting as such solicitor in Suit No. 249 of 1968 on behalf of the defendants asking him as to whether the defendant No. 1 had entered appearance in the instant suit and asking him whether he would accept the service of a notice of motion taken out by the plaintiff's solicitor. The defendants' solicitor S. N. Deb wrote to the plaintiff's solicitor intimating that he would accept service of the notice of motion and pointed out that no writ of summons in the instant suit had been served on the defendants. From a copy of the notice of motion taken out in this suit by the plaintiff's solicitor on 26th March, 1970 and served upon the defendants' Solicitor, defendants' came to know that the plaintiff was applying for the appointment of a Receiver inter alia of the defendant's factory in this suit. In paragraph 3 of the said petition being the grounds of the said notice of motion the plaintiff averted that writ of summons in this suit had been duly served upon the defendants. Thereafter on searches caused to be made by the defendants' solicitor, the defendants came to learn on 13th April 1970 that the writ of summons in the suit was not served upon any of the defendants. The defendants pointed out the said fact of non-service in paragraph 6 of the affidavit in opposition filed by them. The defendants also pointed out that the writ of summons were returned by the sheriff unserved on 17th May 1969. In the affidavit in reply affirmed on 11th May 1970 the plaintiff denied the factum of non-service and again reiterated what he had stated in paragraph 3 of the petition. After the said application for appointment of Receiver was disposed of the defendants made an application for dismissal of the suit on a notice of motion dated 19th May 1970. The said application was made on the basis of the provisions of 0.9 r. 5 of the Civil Procedure Code. Thereafter, the defendants' Solicitor received a letter from plaintiff's Solicitor stating that summons had been caused to be issued by the Court and asking whether the Solicitor would accept service of summons on behalf of the defendants. Thereafter after causing searches to be made through their Solicitor the defendants came to know on or about 22nd May 1970 that the plaintiff had obtained an order for the issue of three fresh writ of summons by the Master, Original Side, of this Court, on 12th May 1970. This application has been made thereafter for the reliefs mentioned hereinabove including setting aside of the said order dated 12th May 1970 of the learned Master.
(2.) This application is, it appears, made by way of an appeal from the said order of the learned master under the provisions of the rules of Original Side of this Court (See Chapter 6 Rule 15). The grounds in support of this application as urged by Mr. Bankim Dutta are as follows : 1. The said application for issue of fresh writs was not made within the time prescribed under Order 9 rule 5 of the Civil Procedure Code and as such ought to have been dismissed and as such the learned Master had no power to make the order. 2. The learned Master is not a Court within the meaning of o. 9 r. 5 of the Code of Civil Procedure and so could not extend the time under the provisions of section 5 of the Limitation Act, 1963
(3.) In the case of Luxmi Trading v. Shriram Gobindanarayan reported in (1) 61 CWN 212 the provisions of O. 9 r. 5 came up for consideration before a Division Bench of this Court. Order 9, Rule 5 provides as follows:- "O.9 r. 5-(l) 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 office 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 cases 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.";

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