Case Note & Summary
The case involves a Notice of Motion filed by the 1st defendant (Aviation Travels Pvt Ltd) seeking to set aside an ex parte order dated 7th October 2003 passed by SJ Vazifdar J. The order was for judgment in favour of the plaintiff (Bhavesha Suresh Goradia) for want of written statement under Rule 89 of the Bombay High Court (Original Side) Rules. The 1st defendant argued that the order was ex parte and should be set aside because no Notice of Motion was filed for judgment for want of written statement, and that the writ of summons was never personally served on the defendant. The court rejected both arguments. It held that Rule 89 does not require a separate Notice of Motion; the rule itself provides for judgment upon expiry of the time for filing written statement. Regarding service, the court noted that an advocate had appeared for all defendants, and the vakalatnama was executed by a person claiming authority under a Power of Attorney. The Power of Attorney was notarized and bore the company seal and signatures; no steps were taken by the 1st defendant to cancel it. The court found the application thoroughly misconceived and dismissed it with costs of Rs. 25,000 to be paid to the plaintiff.
Headnote
A) Civil Procedure - Ex Parte Decree - Setting Aside - Rule 89 Bombay High Court (Original Side) Rules, 1980 - The court held that Rule 89 does not require a separate Notice of Motion for judgment for want of written statement; the rule itself provides for judgment upon expiry of time for filing written statement. The application to set aside the ex parte decree on this ground was misconceived. (Paras 2-3) B) Civil Procedure - Service of Writ - Rule 79 Bombay High Court (Original Side) Rules, 1980 - The court noted that Rule 79 requires personal service of writ of summons unless the advocate undertakes in writing to accept service. However, in this case, the appearance of an advocate for the defendants indicated that service was accepted, and the validity of the Power of Attorney was not challenged for many years. (Paras 3-5) C) Evidence - Power of Attorney - Validity - The court observed that the Power of Attorney in favour of K Shrinivas Rao was notarized and bore the company seal and signatures; no steps were taken by the 1st defendant to cancel it. The court declined to entertain the challenge to its validity at this stage. (Paras 4-5)
Issue of Consideration
Whether an ex parte decree passed under Rule 89 of the Bombay High Court (Original Side) Rules can be set aside on the ground that no Notice of Motion was filed for judgment for want of written statement, and whether the writ of summons was not personally served on the defendant.
Final Decision
Notice of Motion dismissed with costs of Rs. 25,000 to be paid to the plaintiff
Law Points
- Rule 89 of Bombay High Court (Original Side) Rules
- 1980 permits judgment for want of written statement without a separate Notice of Motion
- Rule 79 of Bombay High Court (Original Side) Rules
- 1980 requires advocate's undertaking to accept service
- Power of Attorney validity not challenged for years
