- (1.) This appeal is at the instance of a plaintiff in a suit for recovery of money and is directed against order dated 15th December, 2010, passed by a learned Single Judge of this Court by which His Lordship allowed an application for recalling an earlier order dated March 19, 2009, passed by another learned Single Judge of this Court who allowed the application for extension of time filed by the appellant by granting leave to issue fresh writ of summons and re-lodge the same within 14 days.
(2.) By the order impugned, the learned Single Judge after recalling the earlier order dated March 19, 2009 put back the parties to the earlier position prevailing immediately preceding the said order and the result was that the application being G.A. No.689 of 2009, which was allowed by order dated March 19, 2009, was revived and the defendant was granted opportunity to file affidavit to G.A. No.689 of 2009 within a week from that date. The learned Single Judge further held that the said application should be reheard on merit as the order dated March 19, 2009 was passed without serving a copy of the application relating to G.A. No.689 of 2009 upon the defendant before extension of time to lodge writ of summons.
(3.) Being dissatisfied, the plaintiff has come up with the present appeal. The facts leading to filing of this appeal may be summed up thus: a) The plaintiff/appellant filed a suit claiming a decree for Rs.14,98,220.62P. against the defendant/respondent in the year 1992. There is not dispute that the writ of summons of the suit was lodged for issue and service in the office of the Sheriff on 28th February, 1992 and the plaintiff had put in the requisite fees for the same. b) On 26th February, 2009, the said suit appeared in the daily cause list indicating that the same would be set down in the warning list of P.K. Deb, J. on 5th March, 2009 in terms of Chapter X Rule 19 of the Original Side Rules ("Rules"). Immediately thereafter, by a letter dated 3rd March, 2009, the Advocate-on-Record of the plaintiff sought 3 information from the office of the Sheriff about the service of writ of summons. In reply, the Sheriff's office by a report dated 4th March, 2009 informed that the writ of summons originally filed by the plaintiff could not be served upon the defendant as after the completion of the procedural part in order to make the writ of summons ready, it was found that the returnable date had expired. So the writ of summons could not be served upon defendant due to shortage of time provided under Chapter VIII Rule 3A and Rule 6 of the Rules. It was further stated in the said report that the duplicate copy of the original writ of summons had been misplaced and could not be traced. c) It may not be out of place to mention here that the fact of non-service of the writ of summons was never communicated to the plaintiff or it's Advocate-on-Record by the department in the past and the plaintiff or it's learned Advocate-on-Record also, of their own, did not enquire anything from the office. d) Thereafter the plaintiff took out an application being G.A. No.689 of 2009 thereby praying for permission to issue fresh writ of summons and re-lodging of the same. By an order dated March 19, 2009, P.K. Deb, J. was pleased to grant leave to issue fresh writ of summons and re-lodge the same within 14 days. The plaintiff caused fresh writ of summons to be issued and lodged within the time granted by the Court and subsequently, the same was served upon the defendant. e) The defendant entered appearance on 16th April, 2009 and filed an application being G.A. No.1168 of 2009 on 24th April, 2009 thereby praying for extension of time to file written statement. The said application being moved, the learned Master was pleased to grant time up to 8th June, 2009 for filing written statement. However, no written statement was filed within 8th June, 2009. f) On 22nd June, 2009, the defendant filed another application being G.A. No.1670 of 2009 praying, inter alia, for recalling of the order dated 19th March, 2009 and for dismissal of the suit. As by that time, P.K. Deb, J. had retired, the matter was taken up by another learned Single Judge taking interlocutory matters. g) In course of hearing of the said application before the learned Single Judge, the Deputy Sheriff was examined on oath in open Court and the Deputy Sheriff admitted that the original writ of summons was lodged in his office but the duplicate writ of summons was not available. h) The learned Single Judge, as indicated earlier, allowed the said application filed by the defendant by recalling the earlier order passed by P. K. Deb, J. principally on the ground that no notice of earlier application was served upon the defendant before giving liberty to the plaintiff to issue fresh writ of summons. i) Being dissatisfied, the plaintiff has come up with the present appeal. Mr. Mitra, the learned Advocate appearing on behalf of the appellant, strenuously contended before us that there was no error apparent on the face of the record justifying recall of the earlier order of P.K. Deb, J. at the instance of the successor of His Lordship and the said order could be challenged only by preferring an appeal before the Division Bench. Secondly, the learned Advocate for the appellant submitted that for the purpose of extension of time for fresh service of writ of summons in a case where it was already lodged within the time prescribed by the Original Side Rules but the office could not issue the same for want of time due to procedural irregularity at the instance of office, there was no necessity of giving notice to the defendant and thus, the learned Single Judge acted illegally in recalling the earlier order passed by His Lordship's predecessor.;