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Ramkissen Doss Vs. Luckeynarain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1878)ILR3Cal312
AppellantRamkissen Doss
RespondentLuckeynarain
Cases Referred and Manby v. Manby L.R.
Excerpt:
practice - summons to the defendant to appear and answer--fresh summons--rules of the high court (4th december 1875), 1 and (9th february 1875) 8--limitation. - .....that a plaint shall be taken off the file unless within fourteen days after the institution of the suit a summons to the defendant to appear and answer is taken out and delivered to the sheriff. by the 8th rule of the 9th of february 1875, the times are stated for which the summons is usually made returnable. but in cases where a defendant keeps out of the way to avoid service, or cannot be found after a bond, fide endeavour has been made to serve him, it is the practice of the court, upon application by the plaintiff, to renew the summons and extend its returnable period to three or six months, if a proper case be made. but it must be shown that a plaintiff has used proper diligence--urquhart v. gilbert 1 in. jur. n.s. 224. piling a plaint is similar to filing a bill in chancery, and a.....
Judgment:

Pontifex, J.

1. The mere filing of a, plaint, or the naked fact that a plaint is on the file, will not of itself prevent the operation of the law of limitation. A plaintiff is bound to conduct his suit with proper diligence, otherwise filing a plaint and abstaining from taking further proceedings, would have greater effect in keeping alive a demand than obtaining a decree. By the first of the rules of Court, the 4th of December 1875, which govern the practice of this side of the Court, it is directed that a plaint shall be taken off the file unless within fourteen days after the institution of the suit a summons to the defendant to appear and answer is taken out and delivered to the Sheriff. By the 8th rule of the 9th of February 1875, the times are stated for which the summons is usually made returnable. But in cases where a defendant keeps out of the way to avoid service, or cannot be found after a bond, fide endeavour has been made to serve him, it is the practice of the Court, upon application by the plaintiff, to renew the summons and extend its returnable period to three or six months, if a proper case be made. But it must be shown that a plaintiff has used proper diligence--Urquhart v. Gilbert 1 In. Jur. N.S. 224. Piling a plaint is similar to filing a bill in Chancery, and a plaintiff is bound to take every means in his power by proper proceedings to compel the defendant to appear, or to give him notice of the suit. And so long as he can show that he has diligently attempted to perform this duty, and only so long he is entitled to insist upon the pendency of the suit as counteracting the ordinary law of limitation--Hele v. Lord Bexley 20 Beav. 135. If the first summons cannot be served, the plaintiff' should apply within reasonable time after its returnable period for the issue of a fresh summons, and, if a proper case is made, the usual returnable period will be extended; and I think the first of the rules of the 4th of December 1875 may be taken to furnish an index of what is a reasonable time. The suit ought, in fact, to be kept alive on the same principle, though under a different practice, as governed by the decision in Doyle v. Kaufman L.R. 3 Q.B.D. 7 and Manby v. Manby L.R. 3 Ch. D. 101. It is necessary that this practice should be strictly enforced, as there are too many cases on this side of the Court which are allowed to linger on the file without any serious attempt to bring them on for hearing. In the present case, no steps have been taken to renew the summons for three years, and as no sufficient case has been made by the plaintiff to excuse the delay, I must hold that the present application for the issue of a new summons is out of time, and I accordingly refuse it.


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