Case Note & Summary
The appellant, original plaintiff, filed a suit against the respondents (defendants) and took out a Notice of Motion for ad-interim relief. All proceedings were duly served, and the defendants appeared through an advocate. The appearance was not restricted to the Notice of Motion but was considered as appearance in the suit. Despite this, the learned trial Judge dismissed the Notice of Motion and the suit for non-service of writ of summons. The appellant then took out a Notice of Motion for restoration, which was also dismissed. The High Court held that since the defendants had already appeared through an advocate and were served with the notice of motion, there was no necessity for separate service of writ of summons. The court noted that the Sheriff report showed all necessary steps were taken for service. The impugned order was set aside, the suit was restored, and the Notice of Motion was directed to be heard on merits. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Service of Summons - Appearance by Advocate - Where defendants have appeared through an advocate and were served with notice of motion, there is no necessity for separate service of writ of summons - The trial court erred in dismissing the suit for non-service of summons when defendants had already appeared - Held that appearance by advocate constitutes sufficient service and the suit should be restored (Paras 3-5).
Issue of Consideration
Whether the dismissal of a suit for non-service of writ of summons is justified when the defendants have already appeared through an advocate and were served with the notice of motion.
Final Decision
Appeal allowed. Impugned order dated 6 May 2011 set aside. Suit restored to file. Notice of Motion No.1334 of 2009 to be heard on merits. No order as to costs.
Law Points
- Service of summons
- Appearance by advocate
- Dismissal of suit for non-service
- Restoration of suit
- Civil Procedure Code Order 5 Rule 1
- Order 9 Rule 13
Case Details
2013 LawText (BOM) (10) 70
Appeal from Order No. 807 of 2011 in Notice of Motion No.1334 of 2009 in L.C.Suit No.2802 of 2009 with CAA/1067/2011
Mr. A. M. Saraogi with Mr. Anand Mishra for the Appellant, Mr. S.K. Sonawane for respondent No.1, Mr. V.X. D'Silva for respondent No.3
Mr. Suresh s/o. Daduram Abnave
Municipal Corporation of Greater Mumbai, Sudama Sukhsagar Coop. Society Ltd., Mr. Subhash Ghate
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil appeal against dismissal of suit for non-service of summons
Remedy Sought
Setting aside of order dismissing suit and restoration of suit
Filing Reason
Trial court dismissed suit for non-service of writ of summons despite defendants having appeared through advocate
Previous Decisions
Trial court dismissed Notice of Motion and Suit on 6 May 2011; restoration application also dismissed
Issues
Whether dismissal of suit for non-service of summons is justified when defendants have appeared through advocate
Whether appearance by advocate constitutes sufficient service of summons
Submissions/Arguments
Appellant argued that defendants were served with notice of motion and appeared through advocate, so no separate service of writ of summons was required
Respondents argued that service of writ of summons was necessary and plaintiff failed to comply
Ratio Decidendi
When defendants have appeared through an advocate and were served with notice of motion, there is no necessity for separate service of writ of summons. Dismissal of suit for non-service of summons in such circumstances is erroneous.
Judgment Excerpts
Since the Defendants have duly appeared in the matter and had been served with the proceedings, there was no necessity for service of writ of summons again.
The Sheriff report shows that all the necessary steps were taken for the purpose of service of writ of summons.
Procedural History
Plaintiff filed L.C.Suit No.2802 of 2009 and Notice of Motion No.1334 of 2009. Defendants appeared through advocate. Trial court dismissed suit and notice of motion on 6 May 2011 for non-service of writ of summons. Plaintiff filed restoration application which was also dismissed. Plaintiff appealed to High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order 5 Rule 1, Order 9 Rule 13
