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2008 DIGILAW 1097 (CAL)

Bharat Chowdhury v. Ramprij Chowdhury

2008-12-23

KALIDAS MUKHERJEE

body2008
JUDGMENT : - Kalidas Mukherjee, J.: This is an application under Article 227 of the Constitution of India filed by the defendant/petitioner assailing the impugned order dated 21.9.2006 passed by learned Civil Judge, Junior Division, 1st Court, Chandernagore, Hooghly in T.S. No. 121 of 2002. 2. The case of the petitioner, is that the O.P. Nos. 1 & 2 filed a suit being T.S. No. 121 of 2006 against the petitioner and the proforma opposite parties herein praying for declaration and permanent injunction. The defendant Nos. 3 & 4 entered appearance, but, the summons on the petitioner was not served. The learned Court below by an order dated 26.8.2003 directed the plaintiffs to take steps for service of summons on the petitioner herein and opposite party No.3. On 29.10.2003 the plaintiffs/O.Ps. filed requisites. Thereafter, the plaintiffs/O.Ps. did not take steps to serve summons on the petitioner herein and on 2.1.2006, the petitioner entered appearance and filed an application under Order 9 Rule 5 of the C.P.C. praying for dismissal of the suit on the ground of non-service of summons upon him. The said application was taken up for hearing on 21.9.2006 and the learned Court below rejected the said application. 3. Being aggrieved by the said order passed by the learned Court below, the defendant No. 3 has filed the instant application under Article 227 of the Constitution of India. 4. The learned/Counsel for the petitioner submits that after too summons returned unserved, the plaintiffs did not take steps and the defendant No.3 entered appearance on 2.1.2006 and filed an application for dismissal of the suit under the provision of Order 9 Rule 5 of the CPC. It is submitted that the impugned order was passed by the learned Court below in violation of the provision contained in Order 9 Rule 5 of the CPC. 5. The learned Counsel for the O.P.s submits that the order of injunction was passed and the defendant No.3 who was quite aware of the institution of the suit, entered appearance on 2.1.2006. It is contended that when the 65 defendant No.3 entered appearance, the' provision contained in Order 9 Rule 5 of the CPC was not attracted. The learned Counsel submits that no illegality or material irregularity was committed by the learned Court below in passing the impugned order. 6. It is contended that when the 65 defendant No.3 entered appearance, the' provision contained in Order 9 Rule 5 of the CPC was not attracted. The learned Counsel submits that no illegality or material irregularity was committed by the learned Court below in passing the impugned order. 6. From the papers filed in support of the application under Article 227 of the Constitution of India it appears that the learned Court below passed the order for the issue of summons and on several occasions there was no S.R. of summons. On 4.6.2003 the summons was received back with the endorsement made by the Nazir for extension of time. The learned Court below passed an order for the reissue of the summons upon defendant Nos. 3 &. 4, On 26.8.2003 the summons returned unserved as per report made by the Nazir and the plaintiffs were directed to take steps by 29.10.2003. On 29.10.2003 the plaintiffs filed requisites of summons along with process fees for issuance of summons upon defendant Nos. 3 & 4 through Court. There was no order as regards the SR of summons and on 2.1.2006 the defendant No.3 entered appearance by filing a vokalatnama and also filed a petition supported by affidavit praying for dismissal of the suit under Order 9 Rule 5 CPC. Learned Court below observed that the defendant No.3 already entered appearance and there was no ground to dismiss the suit. 7. It is clear that the summons at one stage returned unserved and thereafter as per direction of the learned Court below, the plaintiffs filed requisites and process fees for the issuance of summons upon defendant Nos. 3 & 4. Thereafter for a long time there was no mention in the order sheet of the learned Court below regarding the SR of summons. Thereafter on 2.1.2006 the defendant entered appearance by filing vokalatnama and also filed the petition, under Order 9 Rule 5 CPC praying for dismissal of the suit. It appears that the plaintiffs took steps for issuance of summons upon the defendant Nos. 3 & 4 as per the direction given by the learned Court below. Thereafter the defendant also entered appearance and, under such circumstances, I think ~hat the provision contained in Order 9 Rule 5 CPC is not attracted. It appears that the plaintiffs took steps for issuance of summons upon the defendant Nos. 3 & 4 as per the direction given by the learned Court below. Thereafter the defendant also entered appearance and, under such circumstances, I think ~hat the provision contained in Order 9 Rule 5 CPC is not attracted. The learned, Court below rightly rejected the petition under Order 9 Rule 5 CPC and no illegality or material irregularity was committed by the learned Court below in passing the impugned order. 8. In the result, the application under Article 227 of the Constitution of India filed by the petitioner fails and the same stands dismissed. There will be no order as to costs. 9. Urgent Xerox certified copy, if applied for, be handed over to the parties as early as possible. Appeal dismissed.