1 app433.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 433 OF 2010 IN SUMMARY SUIT NO. 3577 OF 1998 Ruby R. Wadia ....Appellant. Vs. Rajkumar Sharma & Anr. ....Respondents. Mr. Rustom Khan with Ms. R.M. Purohit for the Appellant. Mr. J.B. Chinai, Sr. Advocate with Ms. Sonal i/by M/s. FF & Associates for Respondent No.2. CORAM : DR. D.Y. CHANDRACHUD AND ANOOP V. MOHTA, JJ. DATE : NOVEMBER 29, 2010 P.C.: The Summary Suit under Order XXXVII of the Code of Civil Procedure, 1908 had been dismissed by the learned Single Judge under Rule 227 of the High Court, Original Side Rules on the ground that though the suit was instituted in 1998, the writ of summons has not been served till now. 2 At the time when the learned Single Judge passed an order on 6 January 2010, the summons has already been served on the Second 2 app433.10.sxw ssm Defendant. The Second Defendant has also not disputed this position. In so far as the First Defendant is concerned, it has been stated that he is absconding and the postal packets have been returned unserved. The learned Counsel appearing on behalf of Appellant states that the efforts would be taken to effect substitute service on the First Defendant by adopting necessary proceedings before the learned Single Judge. In these circumstances, we are of the view that an order under Rule 227 of the Rules was not warranted. The impugned order dated 6 January 2010 is accordingly set aside. The Suit shall be restored to file of the learned Single Judge. 3 The Appeal is accordingly disposed of with no order as to costs. (ANOOP V. MOHTA, J.) (DR. D.Y. CHANDRACHUD, J.)