N. Patherya, J. - (1.) G.A. 2683 of 2007 has been filed for dismissal of C.S. 405 of 2001. G.A. 1975 of 2009 has been filed for setting aside the order dated 28th March, 2008 as modified by order dated 3rd July, 2009. Both the said applications have been filed by the defendants. G. A. 1634 of 2009 has been filed by the plaintiff for extending the returnable date for lodging the writ of summons.
(2.) Counsel for the defendants submits that C. S. 405 of 2001 was filed on 9th August, 2001. Till August, 2007 no step was taken by the plaintiff for service of the Writ of Summons. In fact, by an order dated 21st August, 2007 M. Sinha, J. directed the plaintiff to put the defendants on notice before filing any application and application filed before the Master for extending the time to lodge the writ of summons was not upon notice to the defendants. By order dated 28th March, 2008 the Master has extended the returnable date of the writ of summons which was modified by order dated 3rd July, 2009. Chapter VIII Rule 6 of the Original Side Rules of this High Court postulates delivery of writ of summons within 14 days from the filing of the plaint and in default, Rule 8 postulates extension of the returnable date or issuance of fresh summons. As in the instant case no step was taken to issue or deliver the writ of summons the question of extending the returnable date does not arise and a valuable right has accrued in favour of the defendants which warrants dismissal of C. S. 405 of 2001.
(3.) As the order dated 28th March, 2008 was passed without notice to the defendants the said order and the modified order be set aside. Reliance is place on Order 9 Rule 5 of the Code of Civil Procedure, Chapter VIII Rules 6 and 7 of the Original Side Rules, : AIR 2003 SC 189, : 91 CWN 391;, 1994 (2) CHN 161;, 2006 (3) CLT 230; : 2006 (3) CHN 201 and an unreported decision in APOT No. 780 of 2002 (Deepak Prakash v/s. Jayanta Bose). For all the said reasons, therefore, the suit be dismissed and the order dated 28th March, 2008 be set aside.;