Tarak Chandra Roy vs Jitubhai Patel and Another

Kalyan Jyoti Sengupta, J.—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.

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.

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 reported in Electrical Industries Corporation Vs. Punjab National Bank and Others, , 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.

Learned counsel for the plaintiff has explained that an application has already been made for extension of lodging a fresh writ of summons for service and such application is pending before the learned Master. As such, he contends that in view of such application, the suit should not be dismissed.

I am told that such application before the Master was filed after the instant application was made.

It is said in paragraph 5 of the petition that more than 11/2 years have passed since institution of the suit, the plaintiff has taken no steps for taking out fresh writ of summons. On the face of the charge above no explanation is forthcoming as to what step has been taken. Subsequent application, in my view, cannot help the plaintiff to put excuse for previous lapses.

In the judgment cited above, it is ruled that in absence of explanation of delay of one and half years in taking out fresh writ of summons the suit can be dismissed under Order 9 Rule 5(l) of the CPC read with Calcutta High Court Original Side Rules (Chapter VIII Rules 6 and 8).

Hence, I dismiss the suit on the ground of non service of writ of summons and vacate the interim order. However, it would be open for the plaintiff to institute a fresh suit, as it is a suit for infringement of trademark.

There would be no order as to costs.

A copy of the affidavit in opposition is kept on record since the original is not found.

All concerned are to act on a xeroxed signed copy of this order to be supplied to them on the usual undertakings.