V.S. Sirpurkar, C.J.@mdashIn this appeal, the order by the learned Single Judge of this Court is in challenge. By that order, the learned Judge
allowed the application filed by the respondent East Bengal River Steam Services & Engineering Works Workers'' Co-operative Industrial
Society. By that application, the Society had sought dismissal of Suit No. 1 of 1983 filed by the present appellant against the respondent. In their
application it was pointed out by the respondent that this suit was instituted in the year 1983 and yet the plaintiff appellant herein did not serve the
defendant No. 1 with the summons for the instant suit or any copy of the plaint. The learned Judge accepted this application and has dismissed the
suit necessitating the present appeal.
2. Following factual background would help in understanding the controversy. A civil suit came to be filed by the defendant No. 4 United Bank of
India (hereinafter called ''the Bank'') praying therein for a decree of Rs. 1,13,45,161.75 and other reliefs as against the present appellant. This was
a Suit No. 133 of 1977. In this suit, by an order dated 1.12.1977, this Court appointed Joint Receivers over hypothecated goods of the plaintiff.
On 25.08.1980, the present respondent filed an application in the said suit for obtaining lease of the factory and other assets of the plainiff
company. On November 11, 1980, that application was allowed. That order came to be modified by a subsequent order dated 24th November,
1980. An appeal was preferred against the two orders before the Division Bench. However, the Division Bench dismissed the said appeal. The
respondent herein, therefore, deposited a sum of Rs. 23,71,247/- with the Joint Receivers as a consideration for purchase of the concerned assets.
The amount was accepted by the Receivers and the money was kept in the fixed deposit account of the Receivers in the High Court Branch of the
defendant No. 4 Bank. A special petition was also filed for leave to appeal against this order dated 24.7.1981. However, the Supreme Court
confirmed the said order and dismissed the SLP. Thereafter, on September 22, 1981, the Division Bench passed an order for completing the sale
process and for delivery of possession of the concerned property. Therefore, another SLP was filed against the order of the Division Bench dated
22.09.1981. The original defendant No. 4 Bank also filed SLP against these orders. By orders dated 30.10.1981 and 9.11.1981, the Supreme
Court was pleased to pass interim orders directing the Joint Receivers to hand over the possession of the factory to the present respondent to run
the same under the overall supervision of the Joint Receivers. The Joint Receivers accordingly handed over the possession of the factory to the
respondent, first respondent herein. The Supreme Court also passed the orders dated 18.10.1982 and 22.10.1982 in the SLP field by the
appellant plaintiff company and the defendant No. 4 Bank. Thereafter, the defendant No. 4 Bank moved an application before the Court for an
order directing the Joint Receivers to call a meeting of the parties. The said application was dismissed by an order. dated 13th December, 1982.
Again an appeal was preferred from the order dated 13th December, 1982 which appeal was also dismissed by the Division Bench by its order
dated 17.12.1982. This is how the present respondent became entitled to the conveyance of the concerned assets and properties.
3. It is then that Suit No. 1 of 1983 came to be instituted by the appellant plaintiff who was the defendant in the original suit field by the Bank. In
that suit, the orders dated 11th November, 1980, 24th November, 1980, 22nd September, 1981 and 23rd September, 1981 and the orders
dated 18th October, 1981,18th October, 1982 and 22nd October, 1982 and all subsequent orders made in Suit No. 133 of 1977 were
challenged and a declaration was sought that all these orders were null and void. Thereafter, the suit was completely forgotten and even a writ of
summons was not served on the respondent herein. The aforementioned application therefore, came to be filed for dismissal of the suit in the year
2003. In this Suit No. 1 of 1983, the plaintiff appellant prayed for an interlocutory order restraining the Joint Receivers from registering the
concerned deed in favour of the repondent herein and such order was passed on 11.1.1983.
4. It is an admitted position that the original Suit No. 133 of 1977 now stands transferred to the Debts Recovery Tribunal-I, Kolkata and is
renumbered as TA No. 449 of 1995 and is pending there. It refers to the Suit No. 1 of 1983, apart from the declaration regarding the
interlocutory orders being null and void, other declaration was prayed, that the present respondent No. 1 had any right to buy and purchase right,
title and interest in respect of the leasehold properties mentioned in the plaint. So also a perpetual injunction was sought against defendant Nos. 2
and 3, they being the Joint Receivers, from executing and on registering any conveyance in favour of the defendant No. 1 in that suit, that is, the
respondent herein.
5. As stated above, the suit has been pending in the Court for more than 22 years and it was the contention of the respondent herein that not even
a summons was served on it by the plaintiff appellant. The learned Judge took the view that under Rule 6 of Chapter VII of the Original Side
Rules, a writ of summons is required to be delivered to the Sheriff for service within 14 days from the date of the filing the plaint. The learned Judge
further held that such summons was never delivered by the plaintiff appellant. It is further held by the learned Judge that Chapter X Rule 35
provides that the suit shall be dismissed if it has not appeared in the prospective or warning or peremptory list within six months from the date of
institution. The learned Judge observed that the suit was not even placed in the general list under Rule 2 of Chapter X of the Original Side Rules
and nothing was done. The learned Judge also observed that even after the application was filed for dismissal of the suit, the plaintiff appellant did
not apply for extension of time to deliver the writ of summons to the Sheriff and for the extension of the returnable date. The learned Judge has
viewed all these is total negligence. The learned Judge further observed that under the circumstances the suit was liable to be dismissed and since a
fresh suit is hopelessly barred, a permission at this stage would mean depriving the respondent defendant of the right crystallized in them by the
statute of limitation. It is this order which is in appeal before us.
6. Mr. Bachawat, the learned Counsel appearing on behalf of the appellant plaintiff very earnestly pleaded before us that this is the classic example
of the litigant suffering on account of the negligence shown by Counsel. Relying on the averments of the affidavit-in-opposition to the application for
dismissal, the learned Counsel pointed out that the Counsel engaged to file the Suit No. 1 of 1983 was Mr. A.N. Dawn who was an Advocate-
on-record and he had expired. It was reiterated that the plaintiff had handed over all the necessary papers and documents and all the necessary
changes, fees and amounts for the necessary expenses for filing the suits and taking all steps. He further points out that in the absence of Late Mr.
A.N. Dawn, a petition was made which was affirmed by him and he was told by the said Advocate that the same was moved before the Master
and the necessary order had been obtained for serving the writ of summons. The learned Counsel also heavily relied on that application and
contended that the plaintiff being a ""layman"" was not expected to know the procedural steps to be taken and had to entirely rely upon the
Advocate and that the plaintiff appellant was also under the impression that all the steps were taken properly. The learned Counsel further
contended on the basis of the affidavit-in-opposition that after the death of Mr. A.N. Dawn, it took the plaintiff considerable time to collect the
papers and other documents and even the plaintiff had not been able to collect the entire papers and had, therefore, engaged the present
Advocate-on-record, one Usha Doshi, Advocate who informed the plaintiff regarding the application made by the respondent defendant which
was to come before the Court. The learned Counsel also denied that the name of company was struck off the Register as the Registrar of
Companies u/s 560(3) of the Companies Act, 1956. It was, therefore, contended by the learned Counsel that the litigant should not be punished
and should not suffer for the negligence on the part of the Counsel. The learned Counsel relied heavily on the Division Bench judgment of this
Court reported in 1985(1) CHN 375 Tusnial Trading Company v. Himangshu Kumar Roy and Ors. Relying on the same the learned Counsel
pointed out that the facts were identical in the reported decision inasmuch as the plaintiff therein had failed to take step for issuance of writ of
summons and lodging the same with the Sheriffs Department for service upon the respondent required by Rules 6 and 7 of Chapter VIII of the
Original Side Rules. He pointed out that the defendant there filed an application for dismissal of the same suit for non-prosecution and there was
gross delay on the part of the plaintiff and though the Court endorsed that there was a gross delay and negligence on the part of the plaintiff and/or
the Advocate-on-record, the Division Bench ultimately held that no fault could be found with the litigant and the litigant should not be allowed to
suffer. The learned Counsel, therefore, appealed to us that a technical view should not be taken on the matter, as the dismissal of the suit as
ordered by the learned Judge would completely obliterate the chances of the plaintiff for getting back his property. In addition to this, the learned
Counsel contended that the learned Single Judge had not noted that an application was already filed, the copy of which was annexed with the
affidavit-in-opposition. According to the learned Counsel, this was a very vital error on the part of the learned Single Judge. In this behalf, our
attention was invited to the observations made by the learned Judge that the suit filed in 1983 was not proceeded with any amount of diligence
worth the name. The learned Counsel further pointed out that the application for direction for issuance of writ of summons to the defendants was
made and further prayer was also made suggesting the extension for returnable date of writ of summons by the plaintiff.
7. As against this, the learned Counsel for the respondent defendant urged that it would be futile now to interfere as admittedly the plaintiff
appellant remained dormant for a quite long period of more than 22 years. The learned Counsel was to point out that Mr. A.N. Dawn was very
much alive till recently and as such, it could not be conceived that the plaintiff did not have any knowledge. The learned Counsel points out that the
plaintiff was vociferously pursuing the Civil Suit No. 133 of 1977 although and could not be expected to be oblivious regarding his own suit No. 1
of 1983 which was filed precisely to challenge the various orders passed in Suit No. 133 of 1977. The learned Counsel further pointed out that
even after the application for dismissal of the suit was filed, the plaintiff did nothing by way of seeking the extension of time to serve the writ of
summons which showed the extreme apathy on the part of the plaintiff. Regarding the reported decision, the learned Counsel pointed out that the
case turned up differently on the facts and that the delay in the reported case was only about three and half years as compared to the delay of 22
years in the present case. It was further pointed out that in the reported decision, the plaintiff was an individual and a ""layman"" whereas in the
present case the plaintiff is a company having all the infrastructure and as such, it could not call itself to be a ""layman"" and sit tight over the matter
for about 22 years. Lastly, the learned Counsel urged that the company did not any more exist as its name was struck off from the Register of
Companies by the Registrar u/s 560(3) of the Companies Act and, therefore, it could not continue with the suit. On these rival pleadings, we have
to see as to whether the learned Single Judge was right in dismissing the suit for non-prosecution.
8. In his judgment, the learned Single Judge has relied on Order 9 Rule 5 to hold that under that provision a suit has to be dismissed when a writ of
summons has been returned unserved and the plaintiff has within a month thereafter failed to apply for issue of fresh summons. In our opinion, the
provision under Order 9 Rule 5 would not be apposite because here it is contemplated that a proper summons was issued by the plaintiff and the
same remained unserved and was returned as such to the Court. The reliance of learned Judge on that provision cannot, therefore, be of any avail
to the plaintiff. However, that would not by itself change the position because under Order 9 Rule 2, there is a clear provision that if the summons
is not served upon the defendant, in consequence of the failure of the plaintiff to pay Court-fee or postal charges, if any, chargeable for such
service or to present copies of the plaint or concise statements, as required by Order 7 Rule 9, Court may make order that the suit be dismissed.
The thrust, therefore, is on the inaction on the part of the plaintiff and it is clear that while after filing the suit the plaintiff remains inactive, by not
making the payment of Court-fee or postal charges chargeable for such service or fails to present copies of the plaint or concise statements, then
the Court would be justified in dismissing the suit. When we see the provision of Order 7 Rule 9 Sub-rule (1A), it becomes clear that the plaintiff
has to supply the copies of the plaint and the draft forms of summons and fees for the service thereof. It is clear in this case that in the present suit
nothing of the sort was done. However, we have to also take into consideration the Original Side Rules as this was a suit filed on the Original Side
of this High Court. Under Rule 2A of Chapter VIII, the plaintiff or his Advocate has to obtain printed forms of the writ of summons on payment of
certain fees. He has also to supply along with the plaint sufficient number of copies of such forms to provide for one original writ of summons and
two copies for service on each defendant. The rule provides the further details to be mentioned in such writ of summons. Rule 2B suggests that writ
of summons in forms 2 and 3 should be annexed with the copy of the plaint and of every document sued on which documents are filed along with
the plaint. Rule 6 specifically provides that the writ of summons shall be taken out and delivered to the Sheriff for service within the local limits of
jurisdiction of this Court or for transmission elsewhere. The rule ends with the following words:
Unless an extension of time is obtained, it shall be taken out and delivered to the Sheriff within 14 days from the filing of the plaint or the date of the
order of amendment.
Under Rule 7, it is specifically provided that unless otherwise ordered, no summons shall be received by the Sheriff for service on transmission up
to the expiration of the days mentioned in Rules 6 and 9.
9. It is an admitted position that in this case the plaintiff did not comply with Rule 6 at all by taking out the writ of summons and delivering it to the
Sheriff within the time of 14 days indicated by the rule or thereafter. In fact, when the application for dismissal of the suit was made, even then
there was no effort on the part of the plaintiff to get the time extended for service for taking out the writ of summons and delivering the same to the
Sheriff. It is held in a reported decision in Electrical Industries Corporation Vs. Punjab National Bank and Others, , that in the absence of a
specific provision to the contrary, the CPC provisions indluding Order 9 Rule 5 CPC applies to the Original Side. We have, therefore, no
hesitation to hold that the provision under Order 9 Rule 2 would also apply in the present situation. The learned Judge has also relied on Rule 35 of
Chapter X and has observed that a suit should be dismissed if it has not appeared in the prospective or warning or peremptory list within six
months from the date of institution. In our opinion, the law is stated in a slightly wide manner because that rule provides that such suit which does
not appear in the prospective list, warning list or the peremptory list within six months from the date of institution may be placed before a Judge in
Chambers to be dismissed for default unless good cause is shown to the contrary. The observation that such suit shall be dismissed is not, in our
opinion, the exact legal consequence as has been stated by the learned Judge. However, this also cannot help the plaintiff becuase there was
nothing brought before the learned Judge or even before us to suggest that the suit was placed for being entered in the General Cause list. It seems
that after the suit was filed in the year 1983, absolutely nothing was done. The learned Counsel Mr. Bachawat, however, invited our attention to an
application dated 25.04.1984, the affidavit in support of which is sworn by one Ganga Prosad Roy, the Director and Principal Officer of the
plaintiff company. We have already made the reference to this application while summarizing the contention raised by Mr. Bachawat The learned
Counsel very earnestly asked that if the application was already made then the suit ought to have been placed before the Chamber Judge or at
least some orders were bound to be passed on this application. The learned Counsel also urged that the learned Single Judge has not noticed this
application at all. It is, therefore, that we are considering this application now.
10. In this application, it is pointed out by the plaintiff that the suit was presented before Justice D.K. Sen on 10th January, 1983 with a prayer to
grant leave to pay in deficit Court-fees stamp on the plaint within one week from the date and thereafter, such additional Court-fees stamp were
duly put in. It is then reiterated in paragraph 4 that on the same date an application for interim order was also moved and during the hearing, a talk
of settlement was going on between the parties for settlement of the entire suit. It is then pointed out in paragraph 5 that since the pliantiff was
under the impression that the matter was likely to be settled out of Court, the plaintiff took no further steps to proceed with the said application on
the bona fide belief that the matter was being settled. It is then reiterated that it appeared to the plaintiff that the defendants are not serious about
settlement of the matter and then comes para 7 which is as under:
Your petitioner states that in the circumstances as aforesaid, your petitioner did not take any steps or taking out the writ of summons and lodging
the same with the Sheriff of Calcutta for service upon the defendants.
11. It is therefore clear that though the application for interim orders was moved on 10th January, 1983, the plaintiff, for the first time, on 25th day
of April, 1984 moved the Court for issuance of writ of summons and that, in the meantime, he did not take any steps for taking out the writ of
summons and lodging the same with the Sheriff of Calcutta. When we put this application specifically to the learned Counsel for the defendant
respondent, he specifically refused to have received the copy of this application. The learned Counsel appearing for the appellant plaintiff was also
unable to state as to whether this application was served on the opponent and further whether it was actually filed in the Court or not. He was also
not able to give us the date on which it was filed before the Court. When we see the affidavit-in-opposition and more particularly para 7 thereof, it
is clear that no date of filing of such application is mentioned therein. The bald statements are made as under:
I say that I was told by the then Advocate-on-record, Mr. A.N. Dawn, that an application is required to be made in the aforesaid suit for
necessary order for service of writ of summons upon the defendants and for that purpose a petition was also made which was affirmed by me and
I was then told by Advocate that the same was moved before the Id. Master and necessary orders have been obtained for serving writ of
summons upon the defendants. The xerox copy of the petition as made for service of writ of summons by Sri A.N. Dawn, Advocate is annexed
hereto and marked with letter ""A"". I further say that I paid all necessary charges, fees and costs for doing the needful for service of the writ of
summons upon the defendant for which I was told that necessary steps would be taken by the Advocate in that regard. I further say that as a
layman whatever I can do and/or I am to do I have done and I say that the procedural steps and for other works which I cannot do I have to rely
upon my Advocate and I was always given to understand that my matter is properly taken care of and I believe the same to be correct and I had
no reason to disbelieve my Advocate. After the death of Mr. A.N. Dawn it took me considerable time to collect papers and other documents with
regard to the above suit from his office, though till date I have not been able to collect the entire papers, and thereafter I visited a few Advocates in
the matter and ultimately I handed over this suit to Usha Doshi, Advocate and I was informed by her that this suit is appearing before His Lordship
the Hon''ble Justice Girish Chandra Gupta in the daily cause list.
12. We have deliberately quoted the affidavit as the contention of the learned Counsel was that the petitioner plaintiff had done everything and had
instructed his Counsel and that he was also told by his Counsel that the application made by him. probably in April, 1984, was moved before the
Master and the necessary orders were also obtained for serving the writ of summons upon the defendants. Now, firstly it must be noted that all the
statements made in paragraph 7 are completely vague. The affidavit does not give any dates as to when the alleged talk took place or the place
where the talk took place. We do not have anything to suggest that the deponent who was a Director of the petitioner plantiff had actually
instructed his Advocate-on-record. It is also not clear as to when and in what manner, the instructions were given and we do not have the details
of such instructions also. Something could have been produced before the learned Single Judge or even before us to support the said assurance
given by late Mr. Dawn to the deponent. Very strangely the deponent claims to be a ""layman"" and further claims that he did not know the exact
procedural steps to be taken to continue the suit and therefore, he went on by the assurance given by late Mr. Dawn that the necessary steps were
already taken for issuance of writ of summons for which an order of the Court was also obtained. In the first place, though the affidavit is by a
deponent, it cannot be forgotten that the plaintiff is a registered company. At the relevant time, it was running a factory and where 400 workers
were employed. It cannot be imagined that the company did not have an office or any department for looking after the legal matters. The plaintiff
company was already engaged in Suit No. 133 of 1977 and was contesting that suit vociferously. A plea is raised before us that a representation is
made by Mr. Dawn to the deponent of this affidavit and on that basis, the deponent was a Director of a company and also the plaintiff company
kept quiet for a long period of 24 years. It transpired during the debate that Mr. Dawn maintained a full-fledged office and had died recently in the
year after 2000. That was not contested by Mr. Bachawat also. We fail to follow, therefore, as to how the details or the materials suggesting that
the petitioner was prosecuting the suit were not kept either before the Single Judge or even before us. The learned Counsel could not even give any
details regarding this alleged application being drafted or being presented or regarding any correspondence between the plaintiff and his Counsel
regarding its prosecution. The bald statement that the Advocate ''told'' the deponent about the application having been made and the order having
been passed thereupon without any details or without any supporting documents fails to convince us. This is apart from the fact that the learned
Counsel for the appellant was also not sure as to whether this application was ever served upon the defendants or not. We are constrained to say
that it is not proved before us that such application dated 25.04.1983 was in reality made, filed or prosecuted. We are further constrained to say
that the plea raised by the plaimiff appellant in his affidavit-in-opposition are extremely bald, vague and without any substance.
13. Heavy reliance was placed on the decision of this Court in Tusnial Trading Company v. Himangshu Kumar Roy and Ors. (supra). The learned
Counsel states that the Division Bench of this Court has held that negligence on the part of the Counsel cannot penalize a party or the litigant. There
can be no difficulty about this principle which has been stated by the Supreme Court also in number of decisions. However, present is not a case
where it is proved that the Counsel was negligent. In the reported decision, there is a clear cut finding given by the Court that the clerk for a
particular law firm had failed to get the summous issued and the matter had totally escaped"" his attention due to lapse of time and that the
Advocate-on-record came to know of this for the first time only form the service of the notice of motion of the application for dismissal of the suit.
In the present case, there is nothing on record to suggest that there was any negligence on the part of late Mr. A.N. Dawn or his staff as only a
bald statement is made that he had represented to the plaintiff that he had taken the necessary steps. We have already pointed out that the plaintiff
is a company and it is an unthinkable that after filing suit, the deponent or his staff would keep quiet for more than 20 years without even inquiring
into the matter as to what had happened to the suit. The facts in the reported decision reveal that there was a delay of only three and a half years in
comparison to the inaction of more than 20 years on the part of the plaintiff here. We have already given our finding that besides making the bald
statement that Mr. Dawn had assured that all the steps were taken, nothing else was brought on record either before the Trial Judge or before us.
We are, therefore, not prepared to hold that there was any negligence on the part of late Sri A.N. Dawn or that the plaintiff had proved that Sri
Dawn was negligent. The reported decision in reality turns on the finding of negligence and the plaintiff being not at all guilty, he having taken all
necessary steps to prosecute the suit. Such is certainly not the case here. Here both these factors�negligence of the Counsel and the plaintiff not
being guilty of inaction, are absent. We are also not prepared to hold that the plaintiff was an innocent or ""lay"" party not, conversant with the Court
procedures. We have already pointed out that with the same parties, a suit was already going on. The orders passed in that suit were adverse to
the plaintiff. Those orders were confirmed even by the Supreme Court and by the instant suit, the plaintiff had prayed for setting aside those very
orders which were earlier confirmed by the Supreme Court. Under such circumstances, it cannot be imagined that the plaintiff company was a ''lay
person'' who was entitled to rely solely on its lawyer and remain quiet for more than 20 years. We are, therefore, of the opinion that the reported
decision would not help the plaintiff.
14. The matters do not stop here. In their application for dismissal of the suit, the respondent specifically pleaded in paragraph 2A that the plaintiff
company did not any more exist since it was dissolved. It is further contended that the plaintiff company has been struck off from the Register by
the Registrar of Companies. Eastern Region, u/s 560 of the Companies Act, 1956 and as such, the company stood dissolved. It is further
reiterated that one Ashok Kumar Daga had taken inspection of the relevant records and learned about the fact of dissolution. Along with the
application, the affidavit of Sri Ashok Kumar Daga also appears to have been filed. In his affidavit, Sri Ashok Kumar Daga contended that he was
a practising Company Secretary for seven years and was acquainted with all types of company matters inclusive of causing searches before the
Registrar of Companies and on the instructions of Bose & Mitra, Solicitors and Advocates, he had caused searches concerning the company by
the name of The East Bengal River Steam Services Limited and/or East Bengal River Steam Services Ltd. having its registered office at 87,
Sovabazar Street. Calcutta and that such search was done on 1st February, 2005. The affidavit then proceeded on say that he could not trace out
the existence of the company by its name. In reply to this, the plaintiff has made an extremely vague and evasive statement. It is stated:
I state that so far as I have made caused search in the Gazette published by the Registrar of Companies I have not found the name of the plaintiff
as appearing in the list as defunct company, in the premises u/s 560 of the Companies Act, 1956 the plaintiff company has not been declared as
defunct company and more so because record not found in the Register of the Registrar of Companies does not make a company non-existing.
15. This is a typical example of vague reply. The deponent could well have brought on record in details of any searches made by him regarding the
date etc. It could have also been stated as to which Gazettes published by the Registrar of Companies were searched and when. At least there
could have been a specific assertion regarding the company''s current activities to suggest that it is doing business. Section 560 of the Companies
Act suggests that when the Registrar has reasonable cause to believe that the company is not carrying on business, he shall send to the company by
post a letter inquiring whether the company is carrying on business. By Sub-section (2) it is provided that if that Registrar does not get the answer
to the letter within 14 days, then a registered letter would be sent by him and if there is no answer even to the second letter issued, a notice would
be published in the Official Gazette with a view to striking the name of the company off the Register. Sub-section (3) provides that on the failure by
the company to take any action on this, the Registrar may publish in the Official Gazette and send to the company by a registered post, a notice
that the name of the company would be struck off the Register if the company fails to take any action within three months. In the wake of assertion
from the respondent that the name of the company was not to be found in the Register, much more could have been stated by the plaintiff pointing
out that the company still existed after the assertion was made by a practising Company Secretary who had taken a complete inspection of the
Register. A bald and evasive denial of the kind, in our opinion, cannot be of any help to the plaintiff and therefore, if the company was struck off
the Register, there would be no question of prosecuting the suit by itself. However, we need not go into this, particularly, because the learned
Single Judge has not dismissed the suit on that ground. All the same we deem this to be a relevant circumstance in the peculiar facts of this case.
This is apart from the earlier finding that we have given that the plaintiff had shown total negligence in prosecuting the suit and had wrongly
attributed negligence to his deceased lawyer who could not have come before us to explain his side.
16. The learned Counsel asserted before us that by allowing the suit to be dismissed we would be taking a highly technical view of the matter and
in the process injustice will be caused to the plaintiff as he would be deprived of an opportunity to take any further step in the matter. The learned
Counsel urged that procedural technicality should not be allowed to take precedence over justice. We are quite a ware that we are acting under
civil law. However, in our opinion, merely because it is a civil litigation a party cannot be allowed to remain in the state of hibernation for a period
of 24 years. We will have to take into account the high pendency of the suit for innumerable years and realize that some day a step even if it means
to be a harsh step would have to be taken in such matters to combat the high pendency for long number of years.
17. We are therefore, of the opinion that the learned Single Judge was right in dismissing the suit of the plaintiff. We accordingly confirm the
judgment and dismiss this appeal without any order as to costs.
18. All parties to act on the xerox certified copy of this judgment on the usual undertakings.
Asok Kumar Ganguly, J.
I agree.
