IMPORTANT POINT
There could not be any automatic fiction that would make suit infructuous in absence of writ of summons not being served within returnable date.

Ashim Kumar Banerjee J.—Bringing the facts involved in the present litigation in a narrow compass we would find a suit filed by the plaintiff/company as against one Debt Prasad Poddar and Ashok Kumar Poddar, the original defendants who died leaving them surviving the present appellants. Simultaneously, with the filing of the suit the plaintiffs filed an application for judgment upon admission. The learned Single Judge allowed the said application and passed a decree on December 11, 2002. The defendants challenged the said decree and ultimately succeeded before the Apex Court when the Special Leave Petition filed by the plaintiffs as against the order of setting aside of the decree by the Division Bench, got dismissed. The Apex Court passed the order of dismissal of the Special Leave Petition on March 30, 2007. The parties would agree, the judgment upon admission application was made on the principal amount claimed in the plaint barring a small amount of interest that would remain to be decided. In April, 2007, the defendant No.1 died. Defendant No.2 died subsequently. On August 21, 2007 the death of the defendant No.1 was recorded and his heirs were brought on record. The defendants thereafter made an application for dismissal of the suit inter alia on the ground. the plaintiffs did not take any step for service of the writ of summons. The learned Single Judge while recording the death of the defendant No. 1 preserved the right of substituted defendants to contest, the suit was liable to be dismissed as the plaintiffs failed to serve the writ of summons. The defendants accordingly filed application for dismissal of the suit on August 23, 2007. The plaintiffs approached the learned Master and obtained an order of extension of time to lodge the Writ of summons initially in September, 2007 and thereafter on March 28, 2008 and then April 3, 2009. With the three extensions, the writ of summons was finally served upon the appellants in June, 2009. The defendants upon coming to know of the application for extension, prayed for setting aside of the order of the learned Master. The learned Single Judge by an order dated March 25, 2010 set aside the order of the learned Master and at the same time extended the time to lodge the writ of summons. The writ of summons was thereafter lodged and served upon the defendants.

2. Being aggrieved, the defendants preferred the instant appeal.

3. We heard Mr. Joyjeet Ganguly, learned Counsel appearing for the appellant and Mr. Aryak Datta. learned Counsel appearing for the respondent.

4. Mr. Ganguly contended, once the time to lodge the writ of summons expired and the plaintiff did not take any step for revival the said writ of summons, the suit was liable to be dismissed under Order IX. Rule 5 of the Code of Civil Procedure, Mr. Ganguly would further contend, learned Master did not have any competence to extend the returnable date when writ of summons lapsed either due to non-lodging or not having the returnable date extended within the period of expiry. Once the writ of summons stood lapsed, the learned Master could not have passed any order to activate the suit that would liable to be dismissed under Order IX, Rule 5 of the Code of Civil Procedure. He relied on the following decisions of our Court:

(1) Hindustan Motors Ltd. and another v. National Insurance Co. Ltd. and another, AIR 2003 Cal. 41.

(2) Shrikant Maniri and others v. Radheshyam Chotia and others, (2006) III CLT 230.

(3) State Bank of India v. Twit Applicance (P) Ltd. and others, 1994 (II) Cal. HCN 161.

(4) East Bengal Steam Services Ltd. v. East Bengal Steam Services & Engg. Workers Co-operative Industrial Society Ltd. and others. 2006(III) Cal. HCN 201.

(5) Fort Gloster Industries Ltd. and another v. Tatanagar Transport Corpn. and others, 91 Cal. Weekly Notes 391..

(6) Deepak Prakash and others v. Jayanta Kumar Bose and others unreported judgment dated June 16. 2004.

(7) Hindustan Motors Limited v. National Insu