DEEPAK PRAKASH Vs. JAYANTA KUMAR BOSE

JUDGEMENT

(1.) In this suit two applications have been taken out by the defendant Nos. 1 and 2 and by the defendant No. 5, basically for the same relief. In the application of defendant Nos. 1 and 2 reliefs are more specific, for setting aside and/or cancelling order dated 13/02/1996, revocation of leave under Clause 12 of the Letters Patent and for taking the plaint off the file.

(2.) The petitioner, defendant Nos. 1 and 2 represented by their Senior Lawyer Mr. Hirak Mitra, contends firstly, that the order dated 13/02/1996, extending the returnable date for service of Writ of summons, be set aside and cancelled as the same was passed ex parte. Secondly Court had no jurisdiction to pass the aforesaid order after expiry of three years from the date on which the fresh Writ of summons ought to have been lodged for service upon the defendants and there was no material in the petition for extending the time. By efflux of time for three years, valuable right had been accrued in favour of his client, so, before passing the above order the court should have given notice to his client. He contends, on receipt of Writ of Summons, having been affected by the said order his client had taken out similar application at the earliest possible opportunity. However, the application was disposed of by the Justice Barin Ghosh on 10/12/1999, whereby, Justice Ghosh was pleased to grant leave to take all these points on the subsequent application. The earlier application was disposed of without passing any order, as Justice Ghosh had no jurisdiction at that point of time. Immediately thereafter the present application has been taken out.

(3.) Mr. Mitra contends that the plaintiffs did not take any step for long seven years for service of Writ of summons. The learned Judge should not have granted extension of the returnable date for the service of Writ of summons, when there was inordinate delay, the learned Judge in all fairness should have dismissed the suit. In fact on almost identical facts and circumstances of this case the suits were dismissed. He has relied on two decisions of this Court reported in (1987) 91 Cal WN 391 (fort Gloster Industries v. Tatanagar Transport Corpn) and 1994 (2) Cal HN 161 (State Bank of India v. Tarit Appliances Pvt. Ltd.)