ABDEALLY SK SHAMSUDDIN Vs. J S MOHAMMEDALLY

JUDGEMENT

(1.) The Court : Both the applications are heard together as the points involved in both the matters are same. The first mentioned application has been taken out by the defendant No. 2 for dismissal of the suit and/or taking the plaint off the file and also for other incidental reliefs whilst the second application has been taken out for condonation of delay; order dated 19th August, 2005 be suitably modified and/or vacated and time to issue the writ of summons be extended accordingly,

(2.) In 1999 the plaintiff filed application praying leave under Order 2 Rule 2 of Code of Civil Procedure; a decree for mandatory injunction directing the respondents and each of them to furnish all the documents and information, which the plaintiff has sought for from them in the letter dated 23rd November, 1998; a decree for permanent injunction restraining the defendants and each of them and/or their partners of the defendant No. 1 and/or agents and/or assigns from disposing of and/or encumbering and/or transferring any properties of the defendant No. 1, in which the late father of the plaintiff has 1/5th share and also for partition of the assets and properties of the parties. In the said suit various interlocutory orders were passed. It is said that the orders were violated by the defendant No. 2, so contempt proceedings was initiated and the defendant No. 2 was convicted and awarded punishment. The defendant No. 2 has preferred appeal against the order of punishment and the same is pending. This had happened after institution of the still till 2004. After the aforesaid application has been taken out by the second defendant for the above relief on the ground that since the institution of the suit no step has been taken for progress of the same and the plaintiff had not shown any interest in continuing with the suit, even till the date of filing of the application no writ of summons has been taken out for lodging with the Sheriff on behalf of the plaintiff for the purpose of issuance or service upon the defendants.

(3.) In the affidavit-in-opposition the plaintiff answered that it no point of time the defendants, while contesting the application for amendment of the plaint waived service of writ of summons and therefore, the allegations of inaction on the part of the plaintiff does not and cannot arise, on the contrary, the defendants did not file any written statement. On 19th August, 2005, The Hon'ble Justice Soumitra Sen passed an interim order directing that the time to issue writ of summons shall not be extended by the Master in the meantime. On 21st December, 2005 the matter was heard and new point was taken that there has been no presentation of the plaint in true sense nor the suit has been filed in the register, as such there has been no institution of the suit. In view of this stand taken, by order dated 21st December, 2005 I allowed supplementary affidavit to be filed by the second defendant and also allowed the plaintiff to file affidavit of rejoinder to the supplementary affidavit. In view of the contention and rival contention I called for a report of the Senior Master as to whether the aforesaid suit has been registered in the suit register or not. The learned Senior Master submitted a report to the effect that the plaint was not presented either before Court or before the learned Master. It was not entered into the suit register, however, it was filed in the Central Filing Section and the number of the suit has been given being C.S. No. 186 of 1999. His report is that the plaint is kept as an unadmitted one because of the fact that there is no endorsement on the fiat of admission of the plaint on the backsheet of the plaint.