A suit cannot be dismissed for non-service of summons if the plaintiff has taken steps for service within the time fixed by law and there has been no report from the court or office on the service return, and no direction has been given to the plaintiff to take fresh step.

Bhaskar Bhattacharya, J.

1. THIS first appeal is at the instance of a plaintiff and is directed against the order dated 14th August, 2009 passed by a learned single Judge of this Court by which His Lordship dismissed the suit as against the defendant No.2 on the ground of non-service of writ of summons, however, with liberty given to the plaintiff to institute a fresh suit against the said defendant as the suit was one for infringement of registered trademark.

2. BEING dissatisfied, the plaintiff has come up with the present appeal. The following facts are not in dispute:

a) The plaintiff filed a suit against the defendant Nos. 1 and 2 being C.S. No.209 of 2007 thereby praying for permanent injunction alleging violation of infringement of registered trademark.

(b) In connection with the suit, the plaintiff also filed an application for interim order being G.A. No. 3179 of 2007. The said interlocutory petition was heard by a learned single Judge of this Court on 13th September, 2007 by which His Lordship passed an ad interim order of injunction in terms of prayer A.

c) Subsequently, the defendant No.2 filed an application being G.A. No. 3408 of 2007 thereby praying for variation of the ad interim order of injunction dated 13th September, 2007.

d) On 10th November, 2008, both the application being G.A. No. 3179 of 2007 and G.A. No. 3408 of 2007 were heard by the learned single Judge of this Court but His Lordship refused to vacate the earlier order dated September 13, 2007. The learned single Judge, however, directed the parties to exchange their affidavits.

e) On February 26, 2009, the defendant No.2 filed an application being G.A. 554 of 2009 thereby praying for dismissal of the suit against him and for stay of all further proceeding of the suit and at the same time, also prayed for injunction restraining the plaintiff from taking any step or further step in the suit till the disposal of the application.

f) In the said application, the allegation of the defendant No.2 was that the plaintiff did not serve the writ of summons upon him in spite of expiry of more than one year from the date of institution of the suit. Along with the said application the defendant No.2 filed a copy of the report from the Sheriffs Office dated 1st December, 2008 which indicated that the original writ of summons which had been sent to the Court of the District Judge, Birbhum, for service upon the defendant No.2 had not returned to the Sheriffs Office and the envelope sent to the defendant No.2 through registered post came back with the postal endorsement "insufficient address". On the basis of such report of the postal authority, the defendant No.2 alleged that the plaintiff had no intention to proceed with the suit.

g) The matter was taken up for hearing as new chamber application and Justice Patherya directed the concerned department to file report on March 24, 2009. The inspection report was put up on March 24, 2009 and it appeared that the single original copy of the writ of summons which was sent to the District Judge's Court at Birbhum for service upon the defendant No.2 had not yet returned back and at the same time, the office did not give any report to the Court for taking decision about the retuned envelope or suggesting any fresh service.

h) Ultimately, the aforesaid application was transferred to the Court of another learned single Judge of this Court and after hearing the learned counsel for the parties, His Lordship was pleased to dismiss the suit and vacate the interim order as against the defendant No.2.

Being dissatisfied, the plaintiff has come up with the present appeal.

3. THE only question that arises for determination in this appeal is whether the learned single Judge was justified in dismissing the suit against the defendant No.2 for not taking step for fresh service of summons on him.

4. AFTER hearing the learned counsel for the parties and after going through the materials on record, we are unable to approve the order