1. Heard Mr. R. Hussain, learned counsel appearing for the petitioner-defendant No. 1 and 2 as well as Mr. T. Islam, learned CGSC appearing for the respondents/plaintiffs.

2. This application under section 115 read with article 227 of the Constitution of India is directed against the impugned order dated 13.12.2006 passed in Misc.(J) Case No. 165/06 by the Civil Judge (Sr. Divn.) No. 2, Guwahati rejecting the application filed by the present petitioner, i.e., defendant Nos. 1 and 2 for allowing them to file written statement in Money suit No. 28/03. It is stated that the said money suit No. 28/03 had been transferred in the court of Civil Judge (Sr. Divn.) No. 2, Guwahati and it had been registered as Money Suit No. 125/06. The Money Suit No. 28 of 03/125 of 06 was filed by the respondent-plaintiff Union of India represented by the Chief Engineer, Project Vartak, C/o. 99 APO and the Officer Commanding 519 SS & TC (GREF) against the petitioner-defendant No. 1, M/s. Subansiri Trade & Agencies and the petitioner-defendant No. 2 Sri Kommi Riba son of Shri J.R. Riba and the profomna respondent-defendant No. 2 Shri Bhagchand Jain. The learned counsel appearing for the petitioner submits that the summons of the money suit No. 28 of 03/125 of 06 was not served to the petitioner-defendant No. 2 Shri Kommi Riba. He also by referring to the order 5, rule 11 of the CPC submits that save and otherwise provided, where there are more defendants than one, service of the summons shall be made on each defendant. In the instant case, i.e. in the money suit No. 28 of 03/125 of 06 as there are as many as 3 defendants including the present petitioner, the summons is required to be served upon each of the defendants, i.e., the present petitioners and the proforma respondent. The learned counsel appearing for the petitioners submits that there is no material on the record of the money suit No. 28 of 03/125 of 06 to show that summons to the present petitioner-defendant No. 2 had been properly served in compliance with the provision of section 28 of the CPC inasmuch as the present petitioner-defendant No. 2 is residing another State, i.e., Arunachal Pradesh and the money suit was filed in the State of Assam.

3. Order 8, rule 1 of the CPC clearly stated that the defendant shall file written statement within 30 days from the date of service of summons to him. Further according to the proviso of order 8, rule 1 of the CPC where the defendant failed to file written statement within a period of 30 days he will be allowed to file on such other day as may be specified by the learned court for reasons recorded in writing, but which shall not be later than 90 days from the date of service. In the present money suit No. 28 of 03/125 of 06, according to the learned counsel appearing for the petitioner-defendant, since the summons to the petitioner-defendant No. 2 had not been properly -served time limitation for filing the written statement under order VIII, rule 1 is not applicable to the petitioner-defendant No. 2 inasmuch as 30 days is to be commenced from the date of service of summons to the defendant.

4. The respondent No. 1 also filed affidavit in opposition in the present petition. In para No. 4 of the affidavit in opposition, it is stated that on 28.11.2003 summons was not served upon the defendants and therefore the learned Court fixed 20.1.2004 for report. Since the summon was not served upon the defendants, same had been returned unserved. The learned counsel for the plaintiff filed a petition, i.e., petition No. 109/04 for taking fresh steps for service of summons to the defendants, i.e., present petitioner and proforma respondent. On 23.2.2004 the brother of the present defendant No. 2 filed petition being petition No. 318/04 dated 23.2.2004 stating that his brother, i.e., petitioner-defendant No. 2 is residing at New Delhi, accordingly learned trial court directed the respondent-plaintiff to take fresh steps for service of summons to the defendants fi

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