R.N. Pyne, J. - (1.) This appeal is directed against the judgment and order dated September 13, 1982 of C. K. Banerji, J. allowing the application made by the respondent No. 1, Himangshu Kumar Roy for dismissal of Suit No. 818 of 1978 (Tusnial Trading Company v. Himanshu Kumar Roy & others , filed by the appellant for a decree for Rs. 1,59,543 74 paise and other reliefs.
(2.) On November 16, 1978 the appellant as the plaintiff filed tin said Suit No. 818 of 1978 against the respondents (who were the defendants in the court of the first instance) for recovery of Rs. 1,59,543.64 paise and other reliefs. It appears that after filing of the said suit the appellant made an application for appointment of a Receiver and by an interim order dated November 16, 1978 and final order dated December 5, 1978 Receiver was appointed in the above suit. It is stated that Receiver, A K. Dhandhania, is now holding approximately Rs. 57,000/-.
(3.) After filing of the suit no steps were taken by the Advocates-on-record M/s. Khaitan & Co. on behalf of the appellants (who was the plaintiff in the said suit) for taking out writ of summons and lodging the same with the Sheriff for service upon the defendants, as required by Rules 6 and 7 of the Chapter VIII of the Original Side Rules of this Court. In the above circumstances the respondent No. 1 on or about 14th June, 1982 made an application, inter alia, for dismissal of the said suit for non prosecution. The grounds taken by the respondent no. 1 in his application was that there was gross delay and laches on the part of the plaintiff and although three and half years have passed since the date of the filing of the suit the plaintiff failed to take any steps for taking out the writ of summons and lodging the same with the Sheriff for service upon the defendants as required by the aforesaid Rules Hence, according to the respondent No. 1, for gross delay and Inches on the part of the appellant and/or its said Advocates-on Record as also for non prosecution of the suit the same should be dismissed.;