Judgment :- (1.) THE application being G. A. No. 1536 of 2006 has been filed by the defendant No. 1 and the application being G. A. No. 1139 of 2006 has been filed by the Defendant No. 2 praying for dismissal of above suit being No, c. S. 280 of 2001 on inter alia the ground of the Writ of Summons not having been served on the defendants for over five years. The issues involved in the two applications being identical, the same were heard together and are disposed of by this judgment and order. (2.) THE facts giving rise to these applications are briefly set forth hereinafter. (3.) THE plaintiff claims to be a tenant of a portion of premises No. 16, strand Road, Kolkata 700 001, hereinafter referred to as the suit premises. (4.) BY a deed of lease dated 20th March, 1961 the Defendant No. 1 leased out the suit premises to Hindustan Steel Ltd. predecessor in interest of the plaintiff for a term of 16 years commencing from 16th January, 1955. (5.) UPON expiry of the lease, Hindustan Steel Ltd. continued to remain in possession of the suit premises as a monthly tenant thereof and continued to pay rent to the Defendant No. 1. It is alleged that the Defendant No. 1 duly accepted rent. (6.) HINDUSTAN Steel Ltd. was dissolved by the Public Sector Iron and steel Company (Restructuring and Miscellaneous Provision) Act, 1978 and all rights title and interests of Hindustan Steel Ltd. including tenancy rights enjoyed by Hindustan Steel Ltd. vested in the plaintiff and the plaintiff became a tenant under the Defendant No. 1 (7.) ON or about 7th November, 1998 a major fire broke out at Premises no. 16 Strand Road, Calcutta - 700 001, as a result of which there was extensive damage to the building including the suit premises. (8.) THE plaintiff claims that it was the duty of the Defendant No. 1 as landlord to maintain the premises in proper habitable condition and restore normal user thereof. (9.) ON 2nd February, 2001 the plaintiff received a letter dated 2nd february, 2001 from the Defendant No. 1 calling upon the plaintiff to vacate the suit premises to enable the Defendant No. 1 to demolish the entire building except, the ground floor. (9.) ON 2nd February, 2001 the plaintiff received a letter dated 2nd february, 2001 from the Defendant No. 1 calling upon the plaintiff to vacate the suit premises to enable the Defendant No. 1 to demolish the entire building except, the ground floor. (10) ON or about 20th June, 2001 the plaintiff filed the above suit inter alia claiming a declaration that the plaintiff was and still is a tenant of the suit premises, a further declaration that the plaintiff was and still is, entitled to peaceful use, enjoyment and occupation of the suit premises, a decree of injunction restraining the defendants from demolishing the suit premises and other reliefs. (11.) ON 20th June, 2001 itself an interlocutory application being G. A. No. 2076 of 2001 was filed by the plaintiff whereupon an order dated 20th june, 2001 was passed by B. Bhattacharya, J. (12.) ON 19th July, 2001 the plaintiff filed an appeal against the order dated 20th June, 2001 of Bhattacharya, J. On 19th August, 2001 the Master issued an order for service of Writ of Summons on the Defendant Nos. 1 and 2 at 16 Strand Road, Calcutta -700 001. It appears that the writ of summons was returned unserved to the Sheriffs office on 10th September, 2002. (13.) THE plaintiff has alleged that on 10th March, 2006 the office of the Sheriff informed the Advocate of the plaintiff that the Writ of Summons could not be served on the defendants since no representative or person or employee of the defendants was available at 16 Strand Road, Calcutta -700 001 fo accept the Writ of Summons. (14.) ON 13th April, 2006 the Defendant No. 2 filed the application being G. A. No. 1139 of 2006 for dismissal of the suit on the ground of non-service of Writ of Summons and on 11th May, 2006 the Defendant No. 1 filed the application being G. A. No. 1536 of 2006 also for dismissal of the suit on the same ground. (15.) ON 15th May, 2006 the plaintiff made an ex parte application before the Master being G. A. No. 1507 of 2006 for issuance of fresh Writ of summons and other consequential reliefs, suppressing the fact that these two applications for dismissal of the suit, on the ground of the writ of summons not having been served on the defendants, were pending disposal. (16.) ON 15th May, 2006, the Master passed an ex parte order for issuance of fresh Writ of Summons. On 18th May, 2006 fresh Writ of summons was issued. The Defendant No. 2 received the Writ of Summons at Premises No. 16 Strand Road, Calcutta - 700 001. The Defendant No. 1 has now been served with the Writ of Summons at its registered office at mumbai. (17.) MR, Surojit Nath Mitra appearing on behalf of the Defendant No. 1 submitted that the plaintiff being a-tenant at Premises No. 16 Strand Road, 6calcutta - 700 001, was well aware of the fact that the Defendant No. 1 ceased to have any office at the premises in question after the fire, which destroyed the building. Even though the plaintiffs knew that the Defendant no. 1 had its registered office at 4, Shoorji Vallav Das Marg, Mumbai - 400 001, which address has been mentioned in the cause title of the plaint, no attempt was made to effect service of the Writ of Summons at the aforesaid address. (18.) IT was only after the defendants filed these applications for dismissal of the suit that the plaintiff made the ex parte application before the Master for issuance of fresh Writ of Summons suppressing the material fact that the defendants had already filed applications in this Court for dismissal of the suit. The Master, it is contended, extended the time to issue fresh Writ of Summons, ex parte, without recording reasons. (19.) MR. Mitra submitted that the ex parte application was filed after lapse of over three years from the date of return of the Writ of Summons unserved, that is, beyond the period of limitation. Mr. Mitra submitted that no order could have been passed by the Master after expiry of the period of limitation. (20.) MR. Mitra referred to Order 9 Rule 5 of the Civil Procedure Code, 1908 which is extracted hereinbelow : "r. 5. Mr. Mitra submitted that no order could have been passed by the Master after expiry of the period of limitation. (20.) MR. Mitra referred to Order 9 Rule 5 of the Civil Procedure Code, 1908 which is extracted hereinbelow : "r. 5. Dismissal of suit where plaintiff, after summons returned unserved, fails for three months 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 seven days from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officer, 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 of 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 such case the plaintiff may subject to the law of limitation bring a fresh suit." (21.) MR. Mitra cited the judgment in the case of Electrical Industries corporation v. Punjab National Bank reported in AIR 1979 Cal 8 where a division Bench of this Court held that in the absence of any specific provision in the Original Side Rujes, Order 9 Rule 5 (1) would apply to suits in the original Side of this Court. (22.) MR. Mitra submitted that in view of Order 9 Rule 5 of the Civil procedure Code, 1908 which applies to suits filed in the Original Side of this Court, the plaintiff was required to apply for fresh summons within seven days from the date of return of the unserved Writ of Summons. (23.) MR. Mitra submitted that the service of report of the office of the sheriff, Calcutta dated 21st March, 2006 shows that the Writ of Summons was returned to the Sheriffs office on 10th September, 2002. The plaintiff thus had time to make an application for issuance of fresh Writ of Summons within 17th September, 2002. (23.) MR. Mitra submitted that the service of report of the office of the sheriff, Calcutta dated 21st March, 2006 shows that the Writ of Summons was returned to the Sheriffs office on 10th September, 2002. The plaintiff thus had time to make an application for issuance of fresh Writ of Summons within 17th September, 2002. The plaintiff neither had nor has any explanation for not making an application for issuance of Writ of Summons within 17th September, 2002. (24.) MR. Mitra submitted that the plaintiff was not only guilty of negligence and laches but also guilty of making a surreptitious ex parte application for extension of time for issuance of Writ of Summons suppressing the fact that these two applications were pending, with a view to steal a march over the Defendants. The plaintiff, it is alleged, did not make any application for condonation of delay. (25.) MR. Mitra submitted that in the case of Electrical Industries corporation (supra) the Division Bench refused to condone the delay of about a year and a half, in the absence of any explanation as to what happened during the said vital period. In the instant case too, there is no explanation whatsoever for the delay of almost 4 years in making a fresh application for issuance of Writ of Summons. (26.) MR. Mitra next relied on the judgment of this Court in the case of state Bank of India v. Tarit Appliances Pvt. Ltd and Ors. reported in (1994)2 cal HN 161 where A. N. Ray, J. held that it was undisputable that general power existed to extend the time for lodging the writ of summons, beyond 14 days from filing of the plaint. However, the application for extension of time would have to be made before lapse of 3 years from the date of expiry of the time to lodge the writ of summons. (27.) MR. However, the application for extension of time would have to be made before lapse of 3 years from the date of expiry of the time to lodge the writ of summons. (27.) MR. Mitra next cited the judgment of this Court in the case of laxmi Trading v. Sriram Govind Narayan reported in 61 Cal WN 212, In that case, a Division Bench of this Court comprising Chakravarti, C. J. and lahiri, J. held that where the plaintiff had not made an application under order 9 Rule 5 of the Civil Procedure Code for issue of fresh summons within the stipulated time, nor made an application within the aforesaid period for extension of time, the Master-could no longer entertain an application for such extension, far less an application for issuance of a fresh summons. In such a case the Court was bound to make an order that the suit be dismissed. (28.) MR. Mitra next cited the judgment of this Court in the case of fort Gloster Industries Ltd. and Anr. v. Tatanagar Transport Corporation and ors. reported in 91 Cal WN 391 where a Division Bench of this Court rejected an application for extension of time to lodge a fresh writ of summons, observing that the plaintiffs had not stated whether any attempt was at all made by the plaintiffs for service of summons to the defendants within the period prescribed under Order 9 Rule 5 of the Code of Civil Procedure. The ground of illness of Advocate urged by the plaintiff was found to be vague and devoid of particulars. (29.) MR. Mitra submitted that even though there was no formal appeal before this Court from the order of the Master extending the time for issuance of fresh summons, this Court could still interfere with the order of the Master. In support of the aforesaid submission, Mr. Mitra relied on the judgment of p. B. Mukharji, J. in the case of Shaw and Co. v. B. Shyamal Das and Co. reported in AIR 1954 Cal 369 where His Lordship held that although the application before His Lordship for dismissal of the suit was not expressly an appeal from the Masters decision, allowing issuance of fresh summons, in substance the whole of the petition was an appeal from the decision. The court held as follows : "following Mr. reported in AIR 1954 Cal 369 where His Lordship held that although the application before His Lordship for dismissal of the suit was not expressly an appeal from the Masters decision, allowing issuance of fresh summons, in substance the whole of the petition was an appeal from the decision. The court held as follows : "following Mr. Mukherjees technicality to its logical conclusion all that may happen is that at best this application can be dismissed so that it may be brought up again in a proper form as an appeal from the Master under R. 15 of Chap. 6. It is quite true that the five days have expired from the decision of the Master, which is ordinarily the time that the rule gives for such appeal. But then that time can always be extended by the Judge under that very same R. 15. On facts like these it is the most proper case on which such extension should be granted, so that the course suggested by the learned Counsel for the plaintiff only suggests a multiplicity of proceedings but whose ultimate results are bound to be the same. Justice demands, therefore, that the result should be produced without that multiplicity of useless proceedings. Besides, this being a contested matter would in any event be beyond the competence of the Master to decide and would have come up before me. To meet a technicality with a technicality I will, therefore, treat this application not only as an application to dismiss the suit under O. 9 R. 5, Civil P. C. but also treat it as an appeal from the masters decision issuing a fresh summons and extend the time for such appeal under Chap. 6 R. 15 to the date when the present Notice of Motion was taken out, and having done that, I allow the appeal from the Master. That completely meets the technicality raised by mr. Mukherjee as his second defence to this application. I, therefore, set aside the Masters Order issuing fresh Summons after the time limited by O. 9, R. 5, Civil P. C. " (30.) MR. Mitra finally relied on. an unreported judgment dated 17th september, 2003 of this Court in G. A. No. 728 of 2003 and G. A. No. 3820 of 2002 in C. S. No. 577 of 1987 (Hindustan Motors Ltd. v. National Insurance co. Mitra finally relied on. an unreported judgment dated 17th september, 2003 of this Court in G. A. No. 728 of 2003 and G. A. No. 3820 of 2002 in C. S. No. 577 of 1987 (Hindustan Motors Ltd. v. National Insurance co. Ltd. and Ors.) where P. C. Ghose, J. held as follows : "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 9 Rule 5 of the CPC 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 but and having done then the court allowed the appeal from the Master. 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 Masters order issuing fresh summons after the time prescribed under Order 9, Rule 5 of the C. P. C." (31.) MR. Satarup Banerjee appearing on behalf of the Defendant No. 2 also submitted that the plaintiff had taken no steps from September, 2002 when the writ of summons was returned unserved to the office of the Sheriff till 6th April, 2006 when the Defendant No. 2 filed the application being g. A. No. 1139 of 2006 for dismissal of the suit. (32.) MR. Banerjee submitted that it was only after these applications were moved for dismissal of the suit that the plaintiff made an ex parte application for extension of time for issuance of fresh summons. (33.) MR. Banerjee pointed out that there was not a whisper in the application filed before the Master of the pendency of these two applications for dismissal of the suit in this Court. (34.) IT is submitted that in view of the pending applications, the application for extension of time for issuance of writ of summons could not be said to be uncontested. (34.) IT is submitted that in view of the pending applications, the application for extension of time for issuance of writ of summons could not be said to be uncontested. There being a contest, the Master had no jurisdiction to extend the time for issuance of fresh writ of summons. (35.) MR. Banerjee submitted that the plaintiff had not been able to make out any defence to the application of the Defendant No. 2 in its affidavit-in-Opposition. It was only contended that the writ of summons had already been served on the Defendant No. 2 (36.) MR. Banerjee also relied on the judgments reported in AIR 1979 cal 8 : 61 Cal WN 212 and (1994)2 Cal HN 161, which had been cited by mr. Mitra in support of the case of the Defendant No. 1. (37.) MR. Prbdosh Kumar Mallick, Senior Counsel appearing on behalf of the plaintiff, however, submitted that the application of the plaintiff for issuance of fresh writ of summons had to be made in view of the fact that the defendant Nos. 1 and 2 were avoiding service of the writ of summons. The submission is wholly devoid of particulars. No materials have, however, been disclosed to substantiate the submission of Mr. Mallick that there was attempt on the part of the defendants to avoid service of the Writ of summons. (38.) MR. Mallick next referred to Rule 12 of Chapter VI of the Original side Rules of this Court. The said Rule enumerates the business that can "be transacted by the Master which includes issuance of fresh writ of summons. Under the Rules, an application before the Master might be filed ex parte. (39.) MR. Mallick submitted that the learned Master, on the basis of the application filed before him, passed an order for issuance of fresh writ of summons, after condoning the delay. Thereafter the writ of summons had actually been served on the defendant No. 2 and despatched by post to the Defendant No. 1 at its office at Mumbai. (40.) MR. Mallick relied on the judgment of this Court in the case of electrical Industries Corporation (supra) which had been cited by Mr. Mitra. Mr. Thereafter the writ of summons had actually been served on the defendant No. 2 and despatched by post to the Defendant No. 1 at its office at Mumbai. (40.) MR. Mallick relied on the judgment of this Court in the case of electrical Industries Corporation (supra) which had been cited by Mr. Mitra. Mr. Mallick pointed out that the Division Bench had held that Section 5 of the Limitation Act, 1963 applied to an application under Order 9 Rule 5 (1)of the Code of Civil Procedure, 1908 for issuance of fresh Writ of Summons. Mr. Mallick submitted that having regard to the facts of the aforesaid case this Court was pleased not to condone the delay for making such an application. (41.) MR. Mallick submitted that the Master was court within the meaning of Order 9 Rule 5 of Civil Procedure Code and competent to condone the delay in making an application for issuance of fresh writ of summons. In support of his submission Mr. Mallick cited the judgment of s. C. Ghose, J. in the case of Badrilal Daga v. Howrah Industries and Ors. reported in (1976)1 Cal LJ 98. (42.) MR. Mallick next submitted that the order of the Master under order 9 Rule 5 read with Section 5 of the Limitation Act, 1963 condoning the delay in making an application for issuance of fresh writ of summons was not appealable, as held by S. C. Ghose, J. in the case of Badrilal Daga (supra). (43.) MR. Mallick submitted that for the ends of justice this Court was empowered to extend the time for performance of acts under the provisions of Sections 148, 151 and 152 of the Code of Civil Procedure, 1908 as well as Rule 46 of Chapter XXXVIII of the Original Side Rules of this Court. (44.) MR. Mallick cited the judgment of the Supreme Court in the case of Mahanath Ram Das v. Ganga Das reported in AIR 1961 SC 882 , in support of his submission that Court had power under Sections 148 and 151 of the civil Procedure Code as also under Section 5 of the Limitation Act to extend the time for issuance of fresh summons. (45.) MR. (45.) MR. Mallick finally submitted that this Court should not be hyper-technical in dealing with an application under Order 9 Rule 5 of the Civil procedure Code, 1908 for issuance of fresh Writ of Summons, but adopt a justice-oriented approach. If the delay in making the application for issuance of fresh writ of summons is condoned, the suit might be adjudicated on merits. The defendants would be entitled to contest the claim of the plaintiff. If, however, the suit is dismissed on the technical ground of failure to apply for issuance of fresh writ of summons within the stipulated time, the plaintiff will be irreparably prejudiced. (46.) MR. Mallick finally submitted that no appeal had been preferred from the order of the Master dated 15th May, 2006 extending the time for issuance of fresh summons. The order of the Master had become final and was not liable to be interfered with by this Court at this stage. (47.) IT is not in dispute that the Writ of Summons was returned unserved to the office of the Sheriff on 10th September, 2002. Under Order 9 Rule 5 of the Civil Procedure Code, 1908, which has been held to apply to suits in the Original Side of this Court, in the case of Electrical Industries corporation v. Punjab National Bank (supra), the plaintiff was required to apply for issue of fresh summons within 7 days, that is, within 17th september, 2002. (48.) THE plaintiff did absolutely nothing for over 3 years. On 13th april, 2006 the Defendant No. 2 applied for dismissal of the suit and on 11th May, 2006 the Defendant No. 1 applied for dismissal of the suit. After the defendants filed these applications for dismissal of the suit, the plaintiff surreptitiously made an ex parte application before the Master for issuance of fresh summons, suppressing the fact that these applications were pending in this Court. There is no explanation, far less any cogent explanation, for the delay in taking out the application before the Master. (49.) AS rightly argued by Mr. Mallick, the business that can be transacted by the Master has been enumerated in Chapter VI Rule 12 of the Original Side Rules. The Master is empowered to pass orders for issuance of fresh Writ of Summons. An application for issuance of fresh writ of summons might also be filed ex parte. (49.) AS rightly argued by Mr. Mallick, the business that can be transacted by the Master has been enumerated in Chapter VI Rule 12 of the Original Side Rules. The Master is empowered to pass orders for issuance of fresh Writ of Summons. An application for issuance of fresh writ of summons might also be filed ex parte. (50.) RULE 12 of Chapter VI of the Original Side Rules of this Court, which provides for the business that the Master may transact, expressly excludes adjudication of applications, which are contested, except with the consent of the concerned parties or their attorneys. The Master may, therefore, extend the time for fresh service of summons, but only if there is no contest. (51.) AS held by P. B. Mukharji, J. in the case of Shaw and Co. v. B shyamal Das and Co. (supra) the Master has no authority and/or jurisdiction to decide a contested application. Since these two applications for dismissal of the suit on the ground of non-service of writ of summons were pending the application before the Master for issue of fresh Writ of Summons was in effect, contested and in any event liable to be deemed a "contested application". (52.) IT is true, as argued by Mr. Mallick that an application may be moved before the Master ex parte. The Master might, however, in his discretion direct service on the party to be affected by the order sought. Moreover Rule 13 of Chapter VI provides as follows : "13. Reference by Registrar or Master to a Judge.-Where any matter appears to the Registrar or Master proper for the decision of a judge, the Registrar or Master may refer the same to a Judge, and the Judge may either dispose of the matter or refer the same back to the Registrar or Master with such direction as he may think fit. " (53.) THE Master does not have power to entertain or adjudicate contested applications or to pass such orders as would render contested applications pending before a Judge infructuous. Where, therefore, an application is contested or deemed to be contested or any related applications are pending adjudication before a Judge, the Master is bound to refer the application before him to a Judge for his direction in terms of rule 13 of Chapter VI of the Original Side Rules. Where, therefore, an application is contested or deemed to be contested or any related applications are pending adjudication before a Judge, the Master is bound to refer the application before him to a Judge for his direction in terms of rule 13 of Chapter VI of the Original Side Rules. (54.) THE attention of the Master had apparently not been drawn to these applications which were pending in this Court. Had the attention of the Master been drawn to these applications, the Master would perhaps have made a reference of the applications to a Judge in terms of Rule 13 of chapter VI or at least directed notice on the defendants to ascertain if the concerned defendants and/or their attorneys had their consent to the application being taken up by the Master. (55.) THE Master inherently lacked authority or jurisdiction to pass the ex parte order dated 15th May, 2006, without taking the consent of the defendants or their attorneys, in view of the pending applications. The ex parte order is thus null and void and of no effect and the Court is not bound by the same. It is immaterial that there is no formal appeal from the ex parte order dated 15th May, 2006 under Rule 15 of Chapter VI. (56.) IN the case of Shaw and Co. v. B. Shyamal Das and Co. (supra) P. B. Mukharji, J. treated the application of the defendant for dismissal of the suit as an appeal by extending the time for filing of the appeal till the date when notice of motion was taken out. (57.) IN the more recent judgment in the case of Hindusthan Motors ltd. v. National Insurance Co. Ltd. and Ors. (supra) P. C. Ghose, J. relying on the decision of P. B. Mukharji, J. in Shaw and Co. v. B. Shyamal Das and Co. (supra), also held that the Court could treat an application for dismissal of the suit under Order 9 Rule 5 as an appeal from the decision of the Master for issuance of fresh summons. (58.) UNLIKE in the case of Hindustan Motors Ltd. v. National Insurance co. Ltd. and Ors. (supra) there is not even any application for recalling of the ex parte order dated 15th May, 2006 in this case. The applications for dismissal of the suit were, however, pending when the ex parte order was passed. (58.) UNLIKE in the case of Hindustan Motors Ltd. v. National Insurance co. Ltd. and Ors. (supra) there is not even any application for recalling of the ex parte order dated 15th May, 2006 in this case. The applications for dismissal of the suit were, however, pending when the ex parte order was passed. This Court adjudicating the applications for dismissal of the suit might take notice of the subsequent ex parte order of the Master, in excess of his competence, and adjudge the same invalid. (59.) THE defendants in this case have a stronger case than the defendants in the case of Hindustan Motors Ltd. v. National Insurance Co. Ltd. and Ors. (supra) or the defendants in the case of Shaw and Co. v. B. Shyamal das and Co. (supra), inasmuch as their application for dismissal of the suit was pending, when the ex parte order dated 15th May, 2006 was passed. There could, therefore, be no doubt that there was already a contest when the ex parte order dated 15th May, 2006 of the Master was passed. The defendants chose to obtain an ex parte order by suppression of vital facts, at the risk of the inevitable consequence of detection of suppression and/or in other words at the risk of the ex parte order being set aside. (60.) AS held by S. C. Ghose, J. in the case of Badrilall Daga v. Howrah industries (supra) and by A. N. Ray, J. in the case of State Bank of India v. Tarit Appliances (supra) the Master is competent to entertain an application for extension of time filed after expiry of the stipulated time. (61.) IN the case of Laxmi Trading v. Sriram Govinda Narayan (supra)a Division Bench of this Court construed court in Order 9 Rule 5 of the civil Procedure Code to contemplate only a Judge and not the Master, for the Master could not dismiss a suit. The Division Bench held that where the plaintiff had not made an application under Order 9 Rule 5 of the Civil procedure Code, for issue of fresh summons within the stipulated time nor made any application for extension of time within the aforesaid period, the master could no longer entertain an application for such extension. The Division Bench held that where the plaintiff had not made an application under Order 9 Rule 5 of the Civil procedure Code, for issue of fresh summons within the stipulated time nor made any application for extension of time within the aforesaid period, the master could no longer entertain an application for such extension. (62.) THE judgment of the Division Bench in the case of Laxmi Trading v. Sriram Govinda Narayan (supra) was prior to enactment of the Limitation act, 1963, and in particular Section 5 thereof, which incorporates a change, inasmuch as the Section is applicable in its own force to all applications, except those relating to execution, which include applications to the Master for extension of time. The Master can, however, entertain an application provided there is no contest and provided the application is made within the period of limitation of three years. (63.) IN the case of Badrilall Daga v. Howrah Industries (supra) the suit was filed in the Original Side of the High Court on 22nd February, 1968. The Writ of Summons was returned by the Sheriff on 17th May, 1969. On 12th May, 1970, on the plaintiffs application, the Master made an ex-parte order directing issue of fresh Writ of Summons. The defendants thereafter applied to Court for setting aside the Masters order and for dismissal of the suit on the ground that the plaintiffs application had not been made within 3 months of the return of the summons unserved. It was also contended that the Master was not a Court and had no jurisdiction to make the order. (64.) IT was in the aforesaid factual background and in the context of the arguments advanced that S. C. Ghosh, J. held that the Master was a court within the meaning of Order 9 Rule 5 (2). Section 5 of the Limitation act applied to applications for issuance of fresh summons and if the Master was satisfied that there was sufficient cause for the delay, the Master might make an order for issuance of fresh summons, even though the application might have been made after expiry of 3 months. (65.) THIS Court further held that since no appeal lay from an order under Section 5 of the Limitation Act, 1963, condoning delay the application was liable to be dismissed. (65.) THIS Court further held that since no appeal lay from an order under Section 5 of the Limitation Act, 1963, condoning delay the application was liable to be dismissed. The proper remedy would be to make an application before the Master for setting aside of the ex parte decree. (66.) IN the case of Badrilall Daga v. Howrah Industries (supra) S. C. Ghose, J. in effect held that a competent order condoning the delay in making an application for issuance of fresh writ of summons, in exercise of power conferred under Section 5 of the Limitation Act, 1963 may not ordinarily be appealable. (67.) BADRILALLs case is clearly distinguishable on facts. First of all, there was apparently no contest in Badrilalls case. Secondly, even though the application for fresh summons had been made before the Master after expiry of the time stipulated in Order 9 Rule 5 of the Code of Civil Procedure, the same was within three years from the date of return of the writ of summons unserved. (68.) IN this case, the Master was incompetent to decide the application for issuance of fresh writ of summons, for the reasons stated above, moreover, the application before the Master was itself barred by limitation, the same having been made after expiry of three years from the date of return of the writ of summons unserved. There was no application for condonation of delay in making that application. (69.) IN the case of State Bank of India v. Tarit Appliances Pvt. Ltd. and ors. (supra) cited by Mr. Mitra, A. N. Ray, J. held that it was undisputable that general power existed to extend the time for lodging of the Writ of summons beyond 14 days from filing of the plaint. The application for extension of time would, however, have to be made prior to lapse of 3 years from the date of expiry of the time to lodge the Writ of Summons. In this case the application has been filed long after lapse of three years from the date of return of the writ of summons unserved. (70.) THE ex parte order dated 15th March, 2006 of the Master is nonest for the reasons discussed above and cannot be sustained, the ex parte order of the Master is accordingly set aside. In this case the application has been filed long after lapse of three years from the date of return of the writ of summons unserved. (70.) THE ex parte order dated 15th March, 2006 of the Master is nonest for the reasons discussed above and cannot be sustained, the ex parte order of the Master is accordingly set aside. (71.) THE question is whether this Court should, in exercise of its inherent power extend the time for issuance of fresh writ of summons as contended by Mr. Mallick or whether this Court should dismiss the suit as contended by Mr. Mitra and Mr. Banerjee. (72.) THIS Court undoubtedly has power, in appropriate cases, to extend the time fixed for procedural acts, by the Code of Civil Procedure, the Original Side Rules of this Court, as also orders of Court, provided however, circumstances exist which warrant such extension. (73.) IN the case of Fort Gloster Industries Ltd. and Anr. v. Tatanagar transport Corporation and Ors. (supra) cited by Mr. Mitra, this Court rejected an application for extension of time to lodge fresh Writ of Summons observing that the plaintiffs had not stated whether any attempt was at all made by the plaintiffs for service of summons to the defendants within the period prescribed under Order 9 Rule 5 of the Code of Civil Procedure. The ground of illness of Advocate urged was found to be vagueand devoid of particulars. (74.) IN this case too, admittedly no attempt for service of fresh Writ of Summons was made within the period prescribed by Order 9 Rule 5 of the Civil Procedure Code. No ground has been urged for not attempting fresh service of summons within the stipulated time. There is only a vague averment that the petitioner received information on 10th March, 2006, that the Writ of Summons had been returned unserved to the office of the Sheriff on 10th September, 2002. There is not even a whisper of any enquiry before 10th March, 2006, to ascertain service of the Writ of Summons on the defendants. Moreover, the plaintiff did not even apply for issuance of fresh writ of summons within 7 days from 10th March, 2006. (75.) IN the case of Mahanath Ram Das v. Ganga Das (supra) cited by Mr. There is not even a whisper of any enquiry before 10th March, 2006, to ascertain service of the Writ of Summons on the defendants. Moreover, the plaintiff did not even apply for issuance of fresh writ of summons within 7 days from 10th March, 2006. (75.) IN the case of Mahanath Ram Das v. Ganga Das (supra) cited by Mr. Mallick, the Supreme Court held that procedural orders, though peremptory, are in a sense in terrorem, so that dilatory litigants might put themselves in order and avoid delay. (76.) IN the aforesaid case the Division Bench of the High Court, while deciding an appeal, had passed a peremptory order fixing the date for payment of deficit court fees. The appellant made an application for extension of time, before the time fixed had run out, but the application came on for hearing before the Division Bench after the period had run out. (77.) THE Supreme Court was of the view that the High Court was not powerless to enlarge the time, even though it had peremptorily fixed the time for deposit. The Court was of the view that procedural orders in terrorem do not completely estop a Court from taking note of unforeseen circumstances that occurred within the time fixed. (78.) THERE can hardly be any doubt that peremptory orders of Court fixing a time limit for a certain act might be extended having regard to circumstances not in contemplation when the order fixing the time limit was passed. In this case, however, there is no explanation at all for not adhering to the time schedule prescribed in the Code for fresh service of Writ of summons. (79.) THE condition precedent for condonation of delay in making an application is existence of sufficient cause for the delay. In this case, no cause, far less any sufficient cause has been shown for the delay in applying for issuance of fresh writ of summons. Moreover, the application for issuance of fresh writ of summons was in itself barred by limitation and not supported by any application for condonation of delay. (80.) THE inherent power of this Court under Sections 148 and 151 of the Code of Civil Procedure and/or Rule 46 of Chapter XXXVIII of the Original side Rules, to extend time, is not a panacea that enables an indolent litigant to evade the consequences of its laches. (80.) THE inherent power of this Court under Sections 148 and 151 of the Code of Civil Procedure and/or Rule 46 of Chapter XXXVIII of the Original side Rules, to extend time, is not a panacea that enables an indolent litigant to evade the consequences of its laches. (81.) IT is true that success of these applications would mean dismissal of the suit. The plaintiff would be barred from enforcing its claims, if any. However, this Court cannot waive the law of limitation. Nor can this Court alter the Civil Procedure Code. (82.) THE power of Court to enlarge time is not unfettered. The condition precedent for existence of the power to enlarge time is the existence of circumstances that warrant enlargement of time. In this case, no such circumstances exist. The plaintiffs have not made out any cause, not to speak of sufficient cause for condonation of the delay in issuance of fresh summons. The applications are allowed and the suit is dismissed.