Mitter, J. - (1.) The point of law arising in this appeal and in the next two Nos. 10 and 11 of 1966 is the same and the appeals can conveniently be disposed of together. The question is whether the application of Pannalal Ramnarain in appeal No. 9 of 1966 for dismissal of suit No. 1614 of 1963 and for setting aside the ex parte order of May 27, 1965, directing the issue of fresh writ of summons in the suit should have been allowed by the learned trial Judge.
(2.) The facts are as follows: The Bengal Nagpur Cotton Mills Limited filed a suit No. 1614 of 1963 on September 6, 1963, against Pannalal Ramnarain, Ramnarain Rathi, Minda Ram Mohta and Textile Agents for recovery of a sum of Rs. 87341 -50 as price of goods sold and delivered in September 1960. The writ of summons in the suit was issued on September 23, 1963, and the returnable date thereof was October 25, 1963. On November 27, 1963, an application was made by the Plaintiff for leave to lodge the writ with the Sheriff within a fortnight from the date of issue and for extension of the returnable date of the writ by eight weeks from the date of the order and for other directions. On December 2, 1963 the Master made an order in terms of the prayers of the said application. The order of extension was actually endorsed on the application on December 9, 1963. On December 10, 1963, the writ was received by the Sheriff's office. On January 10, 1964, the Sheriff issued a certificate that no one on behalf of the Plaintiff had attended at his office to have the writ of summons served on the Defendants. On January 28, 1964, the writ of summons was actually returned by the office of the Registrar. The Plaintiff does not appear to have taken any steps in the matter till May 27, 1965, when an application was presented to this Court on the basis of a petition affirmed by one Baijnath Garg praying for condonation of the delay in making the application, for extension of time to make the application for the issue of fresh writ of summons until May 27, 1965, and for the issue of a writ of summons for effecting service thereof upon the Defendants. In the petition it was stated that the Plaintiff could take no steps after lodging of the writ with the Sheriff on December 16, 1963, because of certain difficulties which cropped up in the management of the affairs of the Plaintiff company. By an order dated December 17, 1963, published in the Gazette of India, the Central Government made an order purporting to exercise power under the provisions of Sec. 18A of the Industrial (Development and Regulation) Act of 1951 authorising Rajaram & Bros. to take up the management of the undertaking of the Plaintiff at Rajnandgaon in M.P. under the terms and conditions specified in the said order. There was considerable doubt as to the validity scope and effect of the said order and on January 21, 1964, one Ramkumar Agarwalla and others being shareholders and directors of the Plaintiff moved an application to this Court in its writ jurisdiction praying for the issue of a writ in the nature of certiorari calling upon the Respondents Union of India, State of Madhya Pradesh and Messrs. Rajaram & Brothers for quashing and setting aside the said order dated December 17, 1963. Although a Rule had been issued on the said application it was still pending on May 27, 1965. In view of the pendency of the writ petition considerable doubt arose as to whether the Plaintiff by its Board of Directors or the said Rajaram & Brothers could prosecute and continue the suit filed in this Court. In view of this controversy, it was not possible for anybody to instruct Messrs. Mukherji & Biswas (Solicitors for the Plaintiff) to take steps for issue and service of a fresh writ of summons. These facts and grounds which were stated in the petition are sufficient cause for extension of time to make the application for the issue of a fresh writ of summons. On this application an order was made by Law, J. to the effect that the time for the Plaintiff company to make an application be extended till the date of the order with further order that fresh writ of summons do issue for service on the Defendants and the same be returnable within seven weeks from the date of the signing of the order. On September 28, 1965, the writ of summons was served on the Defendants Nos. 1, 2 and 3. This Court remained closed for the long vacation from September 30, 1965 to November 14, 1965. The Appellant before us gave instructions to its Solicitors to search the records of the suit. On November 15, 1965, the Defendants entered appearance in the suit and on November 18, 1965, the present application out of which the appeal has arisen, was taken out.
(3.) The prayers in the application have already been stated. After setting forth the main facts the Appellant stated in para. 6 of the petition that it was suppressed from the said petition of the Plaintiff and from this Court when the order of May 27, 1965 was made that the writ of summons issued in this suit had been returned unserved and that the time provided by Order 9, Rule 5 of the Code of Civil Procedure to make the application had then expired. it was submitted in para. 7 of the petition that the said ex parte order dated May 27, 1965, was procured by the Plaintiff by suppression of material facts and by misleading this Court. The substantial complaint of the Appellant was that inasmuch as no application had been made within a period of three months from the date of the return of the writ of summons unserved no order could be made extending the time for making the application for issue of a fresh writ of summons and the suit was liable to be dismissed as against the Appellant. A further contention was raised that the learned Judge making the order dated May 27, 1965, had no jurisdiction to do so.;