TARAK CHANDRA ROY Vs. JITUBHAI PATEL & ANR.

JUDGEMENT

(1.) This is an application for dismissal of the suit as against the 2nd defendant on the ground of laches on the part of the plaintiff for not taking out fresh writ of summons. Under the procedure provided in the rules of this Court, the plaintiff has to take out a summons and to lodge it within specified time with the Sheriff who is to take all steps for service of writ of summons.

(2.) In this case, the first attempt of service of writ of summons was not effective as it came back with the endorsement 'unserved'. Even after expiry of 11/2 years, no step has been taken to take out a fresh writ of summons and to lodge it with the Sheriff. In the affidavit in opposition, the aforesaid fact of laches has not been denied and disputed.

(3.) It is submitted by the learned counsel for the petitioner/2nd defendant that when there are laches, on the authority of the Division Bench of this Court AIR 1979 Cal 8, the suit must be dismissed holding that the plaintiff is not very keen to proceed with the suit. He further submits that the plaintiff without taking any steps in the suit has been enjoying interim order. He has also drawn my attention to the past incident when the plaintiff did not take any step in a suit previously instituted in the year 2002 and such suit was dismissed.