Kalyan Jyoti Sengupta, J. - (1.) This application being G.A. No. 2851 of 1997 has been taken out by the defendants for taking the plaint off the file and/or dismissal of the suit on the ground that the plaintiffs are not diligent in taking steps for hearing of the suit as no writ of summons was taken out within 14 days from the date of filing of the suit. It is further contended in this application that no application for extension of time for filing the writ of summons has been made by the plaintiffs till the date of filing of the instant application. None of the defendants has waived his right to receive the writ of summons either, though several interlocutory applications were and are being being made and contested by the parties themselves.
(2.) Mr. Das, learned senior Counsel appearing in support of this applications submits that this suit should be dismissed as from the date of filing of the suit no step has been taken for service of the writ of summons. As such the plaintiff was not interested to proceed with the suit. He contends that as of today no application can be entertained for granting extension of time to serve the writ of summons and under such circumstances there is no alternative left with this Court but to dismiss the same. In support of his submission he has relied on two decisions of this Court, one is of the Division Bench another is of the learned Single Judge of this Court which are reported in 91 Cal WN 391 and (1994)2 Cal HN 161 respectively. He further submits That though during pendency of this application an order was obtained from the learned Master for granting extension of time to lodge duplicate writ of summons for service thereof but such order has been obtained behind the back of the petitioner without notice. This kind of order which has been passed without serving any notice and ex parte should be ignored by this Court as the same is invalid and illegal. The propriety demanded that the learned Master should not have entertained such application and should have referred this matter to the Court. Therefore he contends that the order of the learned Master should be recalled as it has been challenged in their affidavit-in-reply. The principle laid down in the aforesaid two decisions of this Court should be properly applied in this case. He also submits that in this case factually there is no difference between the case decided by the learned Single Judge of this Court and that of present one. If want to express any different view should refer this matter to the Larger Bench without passing any order, ignoring the ratio decided by the learned Single Judge. In support of his submission, he has relied upon a very recent decision of the Supreme Court reported in 2001 SCC 247.
(3.) He has drawn my attention to paragraph 28 of the aforesaid judgment. He contends alternatively for the ends of justice without referring this matter to a larger Bench should decide this matter applying the principle laid down by Justice Ajoy Nath Ray in His Lordship's judgment reported in (1994)2 Cal HN 161.;