Bharati H. Dangre, J.

1. Being aggrieved by the order passed by the learned Single Judge on Notice of Motion No. 2513 of 2016 filed in Suit No. 2808 of 2008 thereby dismissing the suit for want of prosecution on the sole ground that the plaintiffs have failed to serve the defendants as directed by the court, the present appeal is filed.

2. Suit No. 2808/2008 was filed by the present appellants, thereby seeking a declaration that there is a valid and subsisting agreement of sale in respect of a piece of land situated at village Mogra, taluka Andheri, near Silk Mill Compound, Andheri (East) in accordance with the terms and conditions described in the memorandum of understanding executed on 16/11/2007 between the plaintiffs and defendant no. 1 to 5. According to the appellants, they had paid an amount of Rs.17 lakhs towards part payment against the total consideration amount to respondent no.5 under MoU for sale/transfer of the suit properties in favour of the appellants, but there was failure on the part of respondent no.5 to discharge his obligations under the MoU in not providing the marketable title of the suit properties. The appellants were aggrieved by further development that respondent no.5 indulged in an attempt to sell the suit property in order to defeat the legitimate right of the appellants.

In the said suit, notice of motion No.3354/2008 was filed seeking ad-interim relief restraining respondents from creating third party rights over the suit property and the Hon'ble Court by an order dated 22/9/2008 granted adinterim relief in favour of the appellants and the same was confirmed till the final disposal of the suit by an order dated 30/9/2014.

3. The suit being filed, the appellants attempted to serve the respondents through private service and courier with the copies of plaint and notice of motion etc. But respondent no. 1 to 4 were not found at their respective address as mentioned in the cause title of the plaint and all the envelopes containing the notice and the documents were returned with remarks “not found”. Respondent no.5 filed his appearance in the suit and appeared through an advocate in the proceeding.

4. In the suit, writ of summons was not served on the respondent Nos. 1 and 4 and when the matter was listed before the Prothontoary and Senior Master on 22/6/2015, on an application, he granted one more opportunity to the plaintiffs to serve the writ of summons on the respondents. Another attempt was made by the appellants to serve respondent No. 1 to 5 again on address mentioned in the cause title through the bailiff and also through RPAD. The summons were again returned with a remark “left, not known”. The plaintiff filed an affidavit of the clerk of the advocate and also of the Bailiff on 24/7/2015 before the learned Prothonotary and Master. On 22/9/2014 the appellants again moved an application for issuance of fresh writ of summons by way of substituted service and presented the same before the Prothonotary and Senior Master who passed an order on 27/7/2015 permitting the appellants to serve the writ of summons by way of substituted service. It is the case of the appellants that in accordance with the rules of summons as prescribed under the CPC, the appellants published the extract or writ of summons on 1/10/2015 in two local newspapers being “Free Press Journal” and “Navshakti”. It is also the case of the appellants that the writ of summons again came to be served to the respondents through the Bailiff by registered post acknowledgment due on September 30, 2015 and the copies of writ of summons were affixed on the conspicuous part on notice board of this Court on 7/10/2015. The appellants again filed an affidavit of service before the Court depicting service done on the respondents.

5. When the matter was listed before the learned Single Judge of this Court on 14/3/2016, he was of the opinion that the service of writ of summons was not properly done and the learned Prothonotary and Senior Maste