Judgment:
IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction Present : The Hon’ble Justice Ashis Kumar Chakraborty 07.11.2014 GA2446of 2012 CS113of 2006 V.K.Udyog LTD.versus Niaz Ahmed & ORS.Mr.P.K.Ghosh, Senior Advocate Mr.Debashis Das, Advocate for the plaintiff Mr.Ritobroto Mitra, Advocate with Mr.Rupak Ghosh, Advocate Mr.M.A.Jabbar, Advocate for the defendant no.2 The Court :- The instant application has been taken out by the defendant no.2, praying for, dismissal of the suit on the grounds that the plaintiff has not served the writ of summons upon the defendant no.1 and in spite of earlier direction passed by this Hon’ble Court the plaintiff has not disclosed its documents.
In support of his fiRs.contention, Mr.Mitra appearing for the defendant no.2 relied upon an order dated June 13, 2012 passed by a learned Single Judge of this Court, directing the plaintiff to re-lodge the writ of summons within one week from that date.
The said order expressly mentioned that the direction contained therein was made peremptory.
According to Mr.Mitra, the plaintiff has not complied with the said order and as such till today the writ of summons in the suit has not been served upon the defendant no.1.
In support of his second contention for dismissal of the suit, that is, for failure of the plaintiff to disclose documents, Mr.Mitra placed reliance on the provisions contained in Order XI Rule 21 of the Code of Civil Procedure, 1908.
In this regard Mr.Mitra draws my attention to the earlier directions of the learned Master as also an order dated August 17, 2009 passed by a learned Single Judge of this Court directing the plaintiff to disclose its documents in the suit.
However, the plaintiff has not disclosed its documents.
Mr.P.K.Ghosh, learned Senior Advocate appearing for the plaintiff submits that the plaintiff has already complied with the direction passed by the learned Single Judge on June 13, 2014 and on the same date the plaintiff has re-lodged the writ of summons along with copies of the plaint with the office of the Sheriff of this Court.
Mr.Ghosh produces a letter dated June 13, 2014 issued by the Advocate on Record of the plaintiff evidencing receipt of the said writ of summons along with a copy of the plaint by the office of the Sheriff.
So far as the omission on the part of the plaintiff to disclose its documents in the suit, Mr.Ghosh submits that the plaintiff was all along very eager to proceed with the suit and placed an order dated May 13, 2013 passed by the Division Bench of this Court in the interlocutory proceeding.
However, from the records it appears that in August 2012, the defendant no.2 filed the instant application for dismissal of the suit, inter alia, on the ground of non-disclosure of documents by the plaintiff.
It is difficult to appreciate that if the plaintiff is really interested to proceed with the above suit what prevented the plaintiff from disclosing documents.
The suit was filed in the year 2006 and for all these years particularly, after receipt of the instant application filed in August 2012, the plaintiff has not disclosed its documents.
However, Mr.Ghosh submits that the plaintiff is ready to disclose its documents by next Tuesday i.e.November 11, 2014.
Although Mr.Mitra strongly argued that the provisions contained in Order XXI Rule 11 providing for dismissal of the suit on the ground of failure of the plaintiff to disclose its documents within the stipulated period, but there are various decisions of this Court, where the similar provision for dismissal of the suit for nonservice of writ of summons upon a defendant has not been held to be mandatory.
Thus, in the interest of justice the plaintiff is given final opportunity to disclose its documents within November 14, 2014 upon payment of costs assessed at 300 G .Ms.to the State Legal Services Authority .
Such payment shall be deposited within November 13, 2014.
Mr.Mitra appearing for the defendant no.2 prays for two weeks’ time for disclosure of documents by the defendant no.2 and the same is allowed.
The defendant no.2 shall disclose its documents within two weeks from date upon notice to the plaintiff and other defendants.
Let the suit appear before the learned Judge having appropriate determination, after six weeks from date In the meantime, the plaintiff and the defendant no.2 shall complete the inspection of the respective documents disclosed by them.
With the above observation the application is disposed of.
(Ashis Kumar Chakraborty, J.) ANC.