The right to take out a writ of summons arises immediately upon presentation of the plaint or reverification thereof, and an application for extension of time for enforcement of that right must be taken out within three years after its lapse.

Ajoy Nath Ray, J.

1. There are two applications before me, one of which is made on the part of the State Bank of India made by way of Judge's Summons dated 21st July, 1992 wherein a prayer is made for an appropriate order be made extending the time for issuance of the writ of summons as also or taking out and delivering the same to the Sheriffs' Office for service upon the defendants.

2. The second application is made by the two guarantor-defendants in the suit being defendants Nos. 2 and 3 who pray for taking the plaint off the file and a consequent dismissal of the suit. This prayer Mr. Mukherjee has pressed on behalf of his two clients, namely, the defendants No. 2 and 3 so that the suit, even if dismissed, will have to be dismissed only as against these two defendants and not as against any others.

3. Mr. Mukherjee appearing for the two defendants has pressed certain technical points which, in my opinion, deserve serious consideration.

4. Mr. Mukherjee has submitted that the only way of enforcing appearance and attendance of a defendant in a suit is by way of service of an appropriate writ of summons upon that defendant. He is right. A defendant can of course waive his rights regarding service of the writ of summons, and upon such waiver, can on his own appear before the Court and contest the suit. But a defendant is not compelled to waive such a right. He might insist that he shall be served in accordance with law with the writ of summons, and if not so served, he can press for dismissal of the suit, because no appropriate notice as against him has been issued or served.

5. In an application, as opposed to a suit, the respondent is called upon to appear by way of a Notice of Motion, of a Master's Summons or a Judge's Summons. In case such notice is not served, and in case the right to be served with such a notice is not waived, the respondent can always press for dismissal of the application. In a similar manner, a defendant can press for dismissal of a suit if the writ of Summons is left unserved.

6. Mr. Mukherjee has stated that Order IX Rules 1 and 2 provide for the date for appearance on the basis of a writ of summons. He has submitted that the 5th Rule of the said Order provides for the steps that are to be taken by the plaintiff in case a writ of summons has been issued but has been returned unserved. The said three rules of Order IX are set out below: .

"1. On the day fixed in the summons for the defendant to appear and answer the parties shall be in attendance at the Court house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs.

2. Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service or to present copies of the plaint or consise statements, as required by rule 9 of Order VII the Court may make an order that the suit be dismissed:

5. (1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of one month from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons, the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that-

(a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or

(b) such defendant is avoiding service or process, or

(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.

(2) In su