PINAKI CHANDRA GHOSH, J. ( 1 ) THE petitioner being the National Insurance Company Ltd. has filed two applications being G. A. No. 3820/2002 and G. A. No. 728/2003. Both the applications by consent of the parties are taken up by me and are disposed of by this judgment. ( 2 ) THE petitioner in the application being G. A. No. 3820 of 2002 has prayed for an order that the suit filed against the petitioner be dismissed. In the other application being G. A. No. 728 of 2003 the petitioner has prayed for recalling of the order dated 23rd September, 1998 in G. A. No. 3561 of 1998 and order dated 25th June, 2002 in G. A. No. 2413 of 2002 passed by the learned Master on the applications filed by the plaintiff and further for dismissal of the said two applications. ( 3 ) ACCORDING to the petitioner, the writ of summons in the suit was served on the petitioner on 11th July, 2002 although the suit has been filed by the plaintiff on 25th June, 1987. The returnable date of writ of summons was extended by an order dated 23rd September, 1998 further and by an order dated 25th June, 2002 by the learned Master. The plaintiff did not take any steps after the time was extended by the learned Master by an order dated 23rd September, 1998 and returnable date expired. Subsequently, on an application of the plaintiff the order was passed on 25th June, 2002 by the learned Master and the returnable date was extended till 16th September, 2002. Then and then only the said writ of summons was served on the petitioner on July 11, 2002. ( 4 ) THE Advocate-on-Record after entering appearance in the suit caused an enquiry into the matter through its Advocate-on-Record and the petitioner learnt that the writ of summons was lodged by the plaintiffs advocate-on-Record only on 9th July, 2002. In spite of request made by the Advocate-on-Record of the petitioner, such applications for extension of returnable date of writ of summons were not served upon the petitioner by the Advocate-on-Record of the plaintiff. According to the petitioner, the plaintiff is guilty of gross negligence and latches on their part and intentionally did not take any step in the suit for service of the writ of summons. According to the petitioner, the plaintiff is guilty of gross negligence and latches on their part and intentionally did not take any step in the suit for service of the writ of summons. The writ of summons should have been served not later than three weeks (under the rules of the Original Side of this Hon'ble Court ). ( 5 ) THE plaintiff filed a writ application being C. R. No. 8118 (W) of. 1992 (Hindustan Motors Co. Ltd. v. National Insurance Co. Ltd. and Ors.) making a statement in the said writ petition that the petitioner undertook to withdraw the instant suit upon the said writ petition being admitted. According to the petitioner, the subject matter of the suit and the writ petition are same and the plaintiff has no right to initiate two separate proceedings in respect of the same cause of action. Hence, the said application has become infructuous and the plaintiff intentionally did not take any step in the suit for service of the writ of summons on the petitioner for more than 14 years. ( 6 ) THE said writ petition was dismissed by this Hon'ble Court on 7th september, 2001. ( 7 ) ON 17th February, 2003, Advocate-on-Record of the plaintiff forwarded the said two applications for extension of the returnable date of the writ of summons to the Advocate-on-Record of the petitioner. According to the petitioner no ground has been made out in the said application justifying the extension of the returnable date of the said writ of summons. The grounds are identical in both the application and without assigning any reasons on 23rd September, 1998 and 25th June, 2002 the returnable date was extended by the learned Master. After the lapse of 14 years, according to the petitioner, such extension ought not to have been allowed by the learned Master. The learned Master did not have any jurisdiction to pass such order or to entertain the said applications after lapse of 14 and/ or 16 years. Hence the said orders were passed by the learned Master prejudicing the rights of the petitioner and hence it is submitted that the said orders are to be recalled. ( 8 ) THE affidavits have been filed by the parties. Hence the said orders were passed by the learned Master prejudicing the rights of the petitioner and hence it is submitted that the said orders are to be recalled. ( 8 ) THE affidavits have been filed by the parties. The grounds have been taken by the plaintiff that the learned Master had jurisdiction to extend the time to lodge the writ of summons with the Sheriff of Calcutta under chapter-VIII, Rule 2a of the Original Side Rules. It is further contended that some of the defendants reside outside the jurisdiction of the High court and the writ should have been issued by the office of the Registrar original Side making the same returnable after 11 weeks from the date of issuance of the said writs. The Advocate-on-Record of the plaintiff could not lodge the summons with all the documents as required under the provisions of law. Thereby the said writ of summons became defective and it was not issued by the office of the Registrar. As a result whereof, summons could not be lodged with the Sheriff of Calcutta for service. After rectification, the application was filed and the time was extended. Since the writ application was pending the plaintiff did not take any steps in the matter and the time was again expired on 7th December, 1998. Hence, the application was filed and the order was passed on 25th June, 2002 by the learned Master. ( 9 ) ACCORDING to the plaintiff, the plaintiff took all steps in the matter by appointing the Advocate who act on behalf of the plaintiff. For the fault on the part of the Advocate-on-Record of the plaintiff, the plaintiff should not suffer. ( 10 ) IT is further contended that the petitioners right has not been prejudiced by extending such time by the learned Master since the petitioner had ample opportunity to place the facts before this Hon'ble Court in respect of defence of the petitioner. ( 11 ) IT is further contended that the order passed by the learned Master on 23rd September, 1998 and 25th June, 2002 cannot be challenged at this stage since applications are barred under the provisions of law. The petitioner had knowledge of the filing of the suit and further did not take any steps in the suit. The petitioner should have come before this Hon'ble court on the said allegations at an earliest. The petitioner had knowledge of the filing of the suit and further did not take any steps in the suit. The petitioner should have come before this Hon'ble court on the said allegations at an earliest. ( 12 ) MR. Hirak Mitra, learned Sr. Counsel appearing on behalf of the petitioner contended that the orders passed by the learned Master are perverse. The said orders are without any reasons hence should be set aside. The petitioner also did not receive any notice from the plaintiff of the said applications. The notice should have been issued to the petitioner. He further contended that the said order was also passed by the learned master after 14 years from the date of the filing of the suit which is beyond the period of limitation and as such no order could have been passed by the learned Master without condoning the delay. ( 13 ) HE further contended that if the writ of summons is returned, it is the duty of the plaintiff of apply within 3 months in view of the fact that the plaintiff has to satisfy the Court that the grounds for non-service of such summons on the petitioner under Order 9, Rule 5 which also apply to the original Side of this High Court. The plaintiff has to satisfy the Court and then only the Court may extend the time. According to him, under Order 9 rule 5 of the Code of Civil Procedure the time for issuance of fresh summons is three months. The plaintiff did not apply within the said period for an extension of time. Therefore, the Master has no right to entertain any application for such extension after that period and the Court in that case should be pleased to dismiss the suit. The petitioner has lost its valuable rights which accrued in favour of the petitioner for such non- service of writ of summons, and the petitioner couid not get a chance to place these facts at that time. Therefore, according to him, the learned master had no other alternative but to place the matter before the Hon'ble court for orders and the learned Master without doing so by extending the time after the period of limitation has acted without jurisdiction. Hence the order passed by the learned Master is without jurisdiction and should be set aside. Therefore, according to him, the learned master had no other alternative but to place the matter before the Hon'ble court for orders and the learned Master without doing so by extending the time after the period of limitation has acted without jurisdiction. Hence the order passed by the learned Master is without jurisdiction and should be set aside. ( 14 ) HE also relied on the following decisions in support of his contention reported in AIR 1974 SC 87 (Union of India v. M. L. Kapoor and ors.), 1995 (6) SCC 194 (R. D. Bajaj and Another v. . . . . . . .), 1994 (2) CHN 161 (State Bank of India v. Tarit Appliances (P) Ltd. and Ors.) and AIR 1954 calcutta 369 (Shaw and Co. v. B. Shamaldas and Co.), 61 CWN 211 (Laxmi trading v. Shriram Gobindnarain) and 1976 (1) CLJ 98 (Badrilall Daga v. The Howrah Industries and Ors. ). ( 15 ) MR. Sarkar appearing on behalf of the plaintiff contended that this is not an appeal from the order passed by the learned Master. The learned Master had jurisdiction to determine the said question. The learned master has applied its discretion in passing such orders. Order IX Rule 5 of the C. P. C. has no application in the facts and circumstances of the case. The defendant is not prejudiced by the delay caused in the matter in serving the writ of summons on them. He also placed Chapter-Vlll, Rule 8 of the Original Side Rules and submitted that the said rules dispensed with the limitation three months as provided under Order IX Rule 5 of the c. P. C. Hence, he submitted that the said order should not be recalled and the suit should not be dismissed. Reliance was placed on a judgment reported in 1993 (1) AER 952 (Costellow v. Somerset County Council ). ( 16 ) AFTER hearing the learned Counsel appearing on behalf of the parties, it appears to me that the question arose in this matter that whether the order passed by the learned Master should be recalled and/or should be set aside and the suit should be dismissed on the ground that the plaintiff failed to file the application in accordance with Order IX Rule 5 of the code of Civil Procedure. ( 17 ) MR. ( 17 ) MR. Mitra cited a decision "union of India v. M. L. Kapoor (supra)" in support of this contention where the Hon'ble Supreme Court has come to the conclusion in a case of selection it is a duty cast on the selection committee to state reasons in support of their decision. The Hon'ble supreme Court further held that this is the only visible safe guards against possible injustice and arbitrariness in making selections. Therefore, the fact which has been urged before me by Mr. Mitra that it was the duty of the learned Master to give reasons for exercising his discretion to extend the time of the returnable date of writ of summons. It appears to me that the question is whether the discretion has been exercised by the learned master properly in the matter to allow such time. ( 18 ) IT would be proper at this stage to reproduce here the Order IX rule 5 of the Civil Procedure Code :"5. Dismissal of suit where plaintiff, after summons returned unserved, fails for to apply for fresh summons- (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 7 days 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 to a fresh summons the Court shall make an order that the suit be dismissed as against such defendant unless the plaintiff is within the said period specified the Court that- (a) he has faild after using his best endeavours to discover the residence of the defendant who has not been served, for (b) such defendant is avoiding service of process or (c) there is any other sufficient cause of extending the time, in which case the Court may extend the time for making such application for such period as it things fit. (2) in such a case, the plaintiff may (subject to the law of limitation) bringing a fresh suit. " ( 19 ) IT would be proper at this stage for me to refer the rules of the original Side made in Chapter-VIII, which deals with the writ, summons and process. (2) in such a case, the plaintiff may (subject to the law of limitation) bringing a fresh suit. " ( 19 ) IT would be proper at this stage for me to refer the rules of the original Side made in Chapter-VIII, which deals with the writ, summons and process. Under Chapter-VIII Rule 3 the writ of summons shall be returnable to the office of the Registrar immediately after the service thereof but not later than within 4 weeks when the defendant resides or all the defendants reside within the local limits of the ordinary original civil jurisdiction of this Court and where the defendants reside or any of the defendant resides beyond such limit but within the State, it would be returnable then within the six weeks from the date of the issuance of the writ and where the defendant resides or all the defendants reside within india, in that case it would be returnable within eight weeks from the date of the writ is being issued and where the defendant resides or all the defendants reside out-side India, in that case it would be returnable within twelve weeks from the date of the writs being issued. ( 20 ) IT further appears that under Chapter-VIII Rule 6 every writ of summons shall be taken out on behalf of the plaintiff to be delivered to the sheriff, for service within the local limits of the jurisdiction or transmission for service elsewhere within 14 days from the filing of the plaint or the date of the order. Underchapter-VIII Rules 7 and 8 Sheriff shall not receive any summons after the expiration of the days mentioned in Rules 6 and 8 of the said chapter. It further appears that under Rule 13 of the said rule unless otherwise ordered a fresh writ of summons shall not be granted till the return of the first writ. ( 21 ) IT appears from the facts of the case that the writ of summons was taken out by the plaintiff after the expiry of the time as mentioned in order 9 Rule 5 of the C. P. C. and Chapter-VIII of the Original Side Rules. ( 21 ) IT appears from the facts of the case that the writ of summons was taken out by the plaintiff after the expiry of the time as mentioned in order 9 Rule 5 of the C. P. C. and Chapter-VIII of the Original Side Rules. Therefore, it has to be decided at this stage whether the learned Master had jurisdiction to pass any order without specifying the sufficient reason to condone the delay in taking steps by the plaintiff in the suit for such issuance of fresh writ. From the facts, it further appears to me from the applications filed by the plaintiff before the learned Master, the plaintiff did not even make a prayer for condonation of delay before, the learned master. Therefore, the question has to be decided that whether the learned master can extend the time afterthe period of limitation without condoning the delay. ( 22 ) IN 1994 (2) CHN 161 (State Bank of India v. Tarit Appliances (P) ltd. (supra) where the Court came to the conclusion that the suit should be dismissed for want of service for the writ of summons on the defendants in accordance with the provisions of Rule 5 of Order IX of the CPC and rules 6,7 and 8 of Chapter-VIII of the Original Side Rules of the High court unless the service is deliberately waived by the defendants. It is further held in the said decision that Chapter-XXXVIII Rule 46 of the Original side Rules of the High Court does not confer any special leave on the high Court to enlarge time in respect of the service of the writ of summons on the defendants and further the provisions of Limitation Act, 1963 does apply to the case of service of writ of summons as time of such service is fixed by the rules of the High Court. ( 23 ) IT further appears that it is the duty on the part of the plaintiff to serve the writ of summons in accordance with law on the defendant. If there is any latches on the part of the plaintiff with regard to service of writ of summons that might result in the plaintiff suffering the prejudice of a dismissal of a suit all together. If there is any latches on the part of the plaintiff with regard to service of writ of summons that might result in the plaintiff suffering the prejudice of a dismissal of a suit all together. In the instant case, the writ of summons had been taken out and lodged but thereafter, there was no follow up in regard to the effecting of such services on the defendant. After 11 years have been passed the plaintiff for the first time prayed for an order before the learned Master for extension of the returnable date of the writ of summons. Even then, there was no follow up to effect the service on the defendant and time was also expired and the plaintiff filed the second application that too, after lapse of 14 years when the learned Master passed an order without condoning the delay. ( 24 ) THERE is no specific rule which lays down the time limit fortaking out of the summons from the registry but only time limit is that of lodgement of the same in the office of the Sheriff, which should be done within 14 days from the filing of the plaint. Therefore, it is obvious that summons should be taken out within the said period and should be lodged for service. ( 25 ) IN the instant case, it appears that no steps have been taken on behalf of the plaintiff within the said period. ( 26 ) THEREFORE, in my opinion, the order so passed by the learned master it appears that without considering the fact that the plaintiff is utterly failed to take steps in accordance with the provisions of these rules of the original Side and further failed to take steps in accordance with Order IX rule 5 of the C. P. C. within the period mentioned therein. ( 27 ) IN (Shaw and Co. v. B. Shyamal and Co.) reported in AIR 1954 calcutta 369 (supra) the Hon'ble Court has come to the conclusion that the Order IX Rule 5 of the C. P. C. applies to Ordinary Original Civil jurisdiction of this Hon'ble High Court. ( 27 ) IN (Shaw and Co. v. B. Shyamal and Co.) reported in AIR 1954 calcutta 369 (supra) the Hon'ble Court has come to the conclusion that the Order IX Rule 5 of the C. P. C. applies to Ordinary Original Civil jurisdiction of this Hon'ble High Court. ( 28 ) IT further appears from the said decision that the Master under chapter-VI Rule 12 had delegated powers from the Court and it has been specifically held that although under Rule 15 of Chapter-VI of the Original side Rules a person affected by any decision or decisions of the Master has a right to file an appeal before the Court and such appeal should be made within five days or within such time as may be allowed by the Judge or the Master. In the instant case the defendants/petitioner could not get the chance to file such appeal until the writ was served on them and by that process five days had expired already. ( 29 ) IN the said decision the Court also came to the conclusion that technically unless that order is set aside the suit cannot be dismissed because rightly and wrongly an order issuing fresh summons has already been passed in spite of Order IX Rule 5 of the C. P. C. In the instant case, it is a fact that the present application is not expressly stated to be an appeal from the Master's decision issuing a fresh summons. But in substance, the whole of the petition is nothing but an appeal from the decision of that learned Master. It is true, that in the instant case, the facts set out in the petition clearly indicate that hardly any ground was suggested before the Master in the ex-parte petition which would justify the issue of fresh summons. It appears to me from the affidavits filed before me by the parties that no prima facie case was made out by the plaintiff before the master for such extension. ( 30 ) MR. Sarkar submitted that the petitioner shall get ample opportunity to defend his suit. It appears to me from the affidavits filed before me by the parties that no prima facie case was made out by the plaintiff before the master for such extension. ( 30 ) MR. Sarkar submitted that the petitioner shall get ample opportunity to defend his suit. In my opinion there cannot be a ground to disallow the prayer which has been made out by the petitioner in this application and further the petitioner/defendant did not get any chance to place its case before the learned Master and by virtue of the said order the right accrued in favour of the petitioner already has been snatched by that process, in my opinion, which is nothing but gross injustice. ( 31 ) IT further appears to me that it has been decided in the said decision AIR 1954 Calcutta 369 (supra) in a similar situation the Court came to the conclusion that the application can be moulded not only as an application to dismiss the suit under Order IX Rule 5 of the C. P. C. but the court has a right to treat the application as an appeal from the decision of the learned Master issuing a fresh summons and extending the time for such appeal under Chapter-VI Rule 15 to the date when the present Notice. of Motion was taken out and having done that the Court allowed the appeal from the Master. ( 32 ) FOLLOWING the same view of His Lordship P. B. Mukherjee, J. I also treat the application filed by the petitioner for recalling of the order passed by the Master as an appeal from the said orders and I set aside the master's order issuing fresh summons after the time prescribed under order-IX, Rule 5 of the C. P. C. ( 33 ) THE Hon'ble Division Bench of this High Court in Lakshmi Trading v. Sri Ram Govind Narayanan reported in 61 CWN212 has held that where the plaintiff has not made an application under Order IX Rule 5 of the c. P. C. for the issuance of fresh summons within three months. The learned master can no longer entertain an application for an extension of time far less an application for such issue of fresh summons. In such a case, the court is bound to pass an order dismissing the suit. The learned master can no longer entertain an application for an extension of time far less an application for such issue of fresh summons. In such a case, the court is bound to pass an order dismissing the suit. ( 34 ) IN the instant case, following the same view I am of the opinion that the right of the petitioner was crystallised and such valuable right accrued by virtue of the failure on the part of the plaintiff to take steps in the suit. The learned Master cannot pass such order and extend the time for service of the fresh summons without giving an opportunity to the petitioner of being heard. Such action of the Master destroys the valuable right of the petitioner therefore, a violation of natural Justice. The same cannot also be entertained. ( 35 ) THEREFORE, in my opinion, the order so passed by the Master is also bad-in-law. I further do not find any cogent ground made out by the plaintiff for extension of returnable date of the writ either before me or before the learned Master for such extension. Hence, in my opinion both the orders passed by the Masters dated 23. 9. 1998 and 25. 6. 2002 are set aside and the application so filed by the petitioner for dismissal of the suit is allowed. ( 36 ) I do not have any hesitation to hold that there is latches on the part of the plaintiff to serve such summons within the period mentioned in the Order IX Rule 5 and further the grounds as has been mentioned in the petition filed by the defendant the suit has to be dismissed against this defendant. Accordingly, the suit is also dismissed against the petitioner/ defendant. For the reasons stated hereinabove, both the applications are disposed of accordingly.