A lay client should not be made to suffer for the negligence of his lawyer in a procedural matter.

R.N. Pyne. J:

This appeal is directed against the judgment and order dated September 13, 1982 of C.K. Banerji, J. allowing the application made by the respondent No. 1, Himangshu Kumar Roy for dismissal of Suit No. 818 of 1978 (Tusnial Trading Company v. Himanshu Kumar Roy & others) filed by the appellant for a decree for Rs 1,59,54374 paise and other reliefs.

2. On November 16, 1978 the appellant as the plaintiff filed the said Suit No. 818 of 1978 against the respondents (who were the defendants in the court of the first instance) for recovery of Rs. 1,59,543.64 paise and other reliefs. It appears that after filing of the said suit the appellant made an application for appointment of a Receiver and by an interim order dated November 16, 1978 and final order dated December 5, 1978 Receiver was appointed in the above suit It is stated that Receiver, A K. Dhandhania, is now holding approximately Rs. 57,000/-

3. After filing of the suit no steps were taken by the Advocates-on-record M/s. Khaitan & Co. on behalf of the appellants (who was the plaintiff in the said suit) for taking out writ of summons and lodging the same with the Sheriff for service upon the defendants, as required by Rules 6 and 7 of the Chapter VIII of the Original Side Rules of this Court. In the above circumstances the respondent No. 1 on or about 14th June, 1982 made an application, inter alia, for dismissal of the said suit for non-prosecution. The grounds taken by the respondent no. 1 in his application was that there was gross delay and laches on the part of the plaintiff and although three and half years have passed since the date of the filing of the suit the plaintiff failed to take any steps for taking out the writ of summons and lodging the same with the Sheriff for service upon the defendants as required by the aforesaid Rules Hence, according to the respondent No. 1, for gross delay and laches on the part of the appellant and/or its said Advocates-on-Record as also for non, prosecution of the suit the same should be dismissed.

4. In the said application an affidavit affirmed on 22nd July, 1982 by Meghraj Tusnial, a partner of the appellant, was used in opposition to the said application. In the said affidavit the reason for not taking out the writ of summons and lodging the same with the Sheriff's Department for service upon the defendants has been stated. In paragraph 4 of the said affidavit, it is stated that in accordance with Rules 6 and 7 of Chapter VIII of the Original Side Rules the plaintiff and/or its Advocates On-Record was required to lodge the writ of summons with the Sheriff within 14 days from the date of filing of the suit for service thereof upon the defendants. It is stated that one Balailal Bose, a Clerk in the employment of appellant's Advocates-on-Record M/s. Khaitan & Company was and is deputed with the said work of issue of writ of summons from the Department of the court and lodgement thereof with the Sheriff of Calcutta for service. Duo to inadvertance and/or oversight the said clerk failed to get writ of summons issued and lodge the same with the Sheriff for service. According to the appellant, that matter totally escaped the attention of the said Balailal Bose with the lapse of time. It was further stated that since lodging of the writ of summons service with the Sheriff is a routine matter the Advocates of M/s Khaitan & Company in charge of the suit reasonably believed that the said clerk had taken all steps for service of the writ of summons up-:m the defendants. It is further stated that the Advocate of M/s. Khaitan & Company, the Advocates-on-Record of the appellant in charge of the said suit from service of the notice of motion of the application made by the respondent No. 1 came to know for the first time that the writ of a summons was not served on the defendants. It appears that after the said application of the respondent the appellant on or about 11th July, 1982 made an application for extension of time