1 SSK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 195 OF 2010 IN SUMMARY SUIT NO.210 OF 2003 Asian Paints (I) Ltd. ....Appellants Versus Mr. Ishwarchand Lodha ....Respondent Mr. H. Toor i/b. M/s. Chitnis & Co., Advocate for the Appellants. CORAM : F. I. REBELLO & R. V. MORE, JJ. DATE : 10TH JUNE, 2010. P.C.: The suit filed was a summary suit and was placed before a learned Judge of this Court under caption “For Dismissal”. The learned Judge on 27th January, 2010 considering Rule 227 of the Original Side Rules, dismissed the suit. This is the subject matter of the present appeal. 2. The learned Counsel for the Appellants has filed before us, an affidavit of service to show that they have attempted to serve the Respondent at the address. The same is taken on record. 2 3. The question for our consideration is, whether the learned Judge could have dismissed the suit under Original Side Rule 227? The Original Side Rule 227 reads as under : “R.227. When no decree applied for within six months:- If the plaintiff does not apply for a decree within six months after the filing of the plaint, the suit shall be set down for dismissal on the board of the Judge in Chambers. The Prothonotary & Senior Master shall notify on his notice board the date on which the suit is to be set so set down and shall do so at least eight days before such date. If the plaintiff is appearing in person, the Prothonotary & Senior Master shall give notice of the date to the plaintiff by sending a letter to him by post under certificate of posting.” Normally, rules or procedures, if they are considered to be mandatory, have to be strictly construed. In the instant case before us, if the suit was to be set down for dismissal, certain procedures ought to have been followed. The Prothonotary & Senior Master ought to have first notified on the notice board, the date on which the suit is to be so set down and that has to be done atleast eight days before such date. If the plaintiff is appearing in person, the Prothonotary and Senior Master shall give notice of the date to the plaintiff by sending a letter to him by post under 3 certificate of posting. In the instant case, the plaintiffs were represented by their lawyers. However, there is nothing on record, nor does the order of the learned Single Judge shows that the procedure as required was followed by the Prothonotary and Senior Master. In that view of the matter alone, the suit could not have been set down for dismissal and consequentially on that ground itself, the impugned order is liable to be set- aside. 4. Apart from that, we find that the Rule was construed by a learned Single Judge of this Court in the case of Central Bank of India Versus Femme Pharma Limited and Ors. AIR 1982 Bombay 67. The learned Judge noted the distinction between old Rule 220 (4) of the Rules of 1957 and Rule 227 as it now stands. The learned Judge observed that the present Rule only provides that the suit shall be placed on board for dismissal but it does not provide as to what is to happen thereafter. In these circumstances, the learned Judge held that the Court would have a wider discretion now than interms of the old rule and the Court is not bound to dismiss the suit. In the instant case, it appears that the attention of the learned Judge was not invited to this judgment. The suit is of the year 2003. The suit was placed on board for dismissal on 27th January, 2010. In these circumstances, in our opinion, considering that the suit was for an amount of Rs.58,00,000/- in respect of goods sold and delivered, normally 4 in such case, the Court ought to have given an opportunity to the Appellants herein before exercising the discretion to dismiss the suit. In our opinion, on this count also the impugned order is liable to be set-aside. 5. For the aforesaid reasons, the impugned order is set-aside, subject to the condition that the Appellants herein take steps to serve the Respondent/Org.Defendant according to law within 12 weeks from today. Appeal is disposed of, accordingly. (R. V. MORE, J.) (F. I. REBELLO, J.)