ASHIM KUMAR BANERJEE, J. - (1.) IN 2000 the above suit was filed by the plaintiffs against as many as nine defendants. Soon after filing of the suit interlocutory applications were, made from time to time both by the plaintiffs as well as the defendant Nos. 1,8 and 9. Those applications were hotly contested up to the Apex Court level. The plaintiffs were successful in obtaining interim order.The defendants were unsuccessful in getting the same modified and/or varied and/or vacated. The defendants were also unsuccessful in getting leave under clause 12 revoked.The plaintiff,however,did not take any steps for service; of the writ of summons as well as praying for issuance of the writ of summons as upon the defendants.lt came to the notice of the plaintiffs in 2006 when they took out the application being G.A.NO. 512 of2006,inter alia,Praying for extension of returnable date of writ of summons as well as praying for issuance; of the writ of summons by the department with a corresponding leave to lodge the same with the Sheriff of Calcutta for service upon the defendants. The defendant Nos. 1 and 8 jointly and the defendant No 9 made to applications being G. A No.523 of2006 and G. A No. 524 of 2006 respectively for dismissal of the suit under Order 9 Rule 5 of the Code of Civil Procedure, inter alia, on the ground that no step was taken by the plaintiff for service of the writ of summons on the defandants as required under Rule 9 of the Code of Civil Procedure.
(2.) ALL the three aplication were heard by me and are disposed of by this common judgment and order.
(3.) ORDER 9 Rule 13 of the Code of Civil Procedure gives a mandate to the Court to dismiss a suit where no step is taken for service of the writ of summons within three months from the date of filing of the suit. It provides that after the summons have been issued to the defendant and returned unserved and plaintiff fails to take any step for service upon the defendant by applying for issue of fresh summons the Court "shall" make an order of dismissal of the suit unless the plaintiff gives sufficiant explanation for not doing the same within stipulated period. This perticular rule was interpreted by our Court in the earlier precedents. Some of the precedents were relied upon by the learned counsel appearing for the parties which are as follows: (i) Volume 8, Indian Law, Reporters, Calcutta, Page 420 (Kedarnath Dutt vs. Harra Chand Dutt) (ii) AII India Reporter 1954, Calcutta, Page 369 (Shaw & Company vs. R. Shamal Das & Co.) (iii) All India Reporter 1979, Calcutta, Page 8 (Electrical Industries Corporation vs. Punjab National Bank & Qrs.) (iv) Volume 61, Calcutta Weekly Notes, Page 212 (Laxmi Trading vs. Shriram Gobindnarain.) (v) Volume 91, Calcutta Weekly Notes, Page 391 (Fort Gloster Industries limited &Anr. vs. Tatanagat Transport Corporation & Anr.) (vi) 1985(1) Calcutta High Court Notes, Page 375 (Tusnial Trading Company vs. Himangshu Kumar Ray & Ors.) (vii) 1994, Volume - II, Calcutta High Court Notes, Page 161 (State Bank of India vs. Tarit Appliances (P) Ltd. & Ors.) On perusal of the aforesaid judgments it appears to me that when steps are not taken within the stipulated period the Court has no option but to dismiss the suit as elaborately explained by P. B. Mukherjee in, the case of Shawallace and Company (Supra). His Lordship considered this rule as well as the appropriate provisions of the High Court Rules and came to a conclusion that there had been no conflict with the High Court Rules and this rule and when die summons arc returned unserved and the plaintiff fails to apply for fresh summons within three months this would entail penalty of dismissal of the suit and the Court is left with no discretion but to make an order of dismissal. However, if within those three months plaintiff applies tor fresh summons he is to satisfy the Court with regard to the reason for delay meaning thereby if an application is made beyond three months the Court has no discretion even if sufficient explanation is given.;