1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1228 OF 2006 IN SUIT NO.1358 OF 1994 Dr.Bomi H. Battiwala ..Plaintiff V/s. A.H.Tobaccowala & anr. ..Defendants Ms.Gauri Godse, Advocate, for the plaintiff Mr.Avinash Joshi i/b.M/s.Mulla & Mulla, Advocate, for the defendants CORAM : R.M.SAVANT, J. DATE : 12TH NOVEMBER, 2008 P.C. . By the above Chamber Summons, the applicant/plaintiff seeks the following reliefs. (a) That this Hon'ble Court be pleased to quash and set aside the Order dated 24th August, 2006 passed by the Additional Prothonotary and Senior Master (D.V.Savant) in Chamber Order (L) No.840 of 2006 in Suit No.1358 of 1994 and be further pleased to condone the delay caused in effecting service of Writ of Summons on the defendants. 2 (b) That this Hon'ble Court be pleased to grant leave to issue Writ of Summons to the defendants in Suit No.1358 of 1994. 2. It appears that after filing of the above suit the applicant/plaintiff's erstwhile advocate applied for issuance of Writ of Summons. According to the applicant/plaintiff, the record indicates that the summons were in fact issued. However, the acknowledgement of the Writ of Summons having been served on the defendants does not find a place in the record. The fact remains that the defendants have filed their appearance through M/s.Mulla & Mulla Solicitors in the suit. 3. After change of advocate, the present advocate of the plaintiff took inspection of the record and found that there was no material on record showing that the Writ of Summons was served upon the defendants. The applicant/plaintiff therefore, applied for condonation of delay and service of the Writ of Summons by filing an application in the form of Chamber Order setting forth the facts on the basis of which the relief was sought in the said Chamber Order. The learned additional Prothonotary and Senior Master by his Order dated 3 24th August, 2006, has dismissed the said Chamber Order. As indicated above, it is in respect of the Order dated 24th August, 2006 that the above Chamber Summons has been filed. 4. The learned counsel for the applicant/plaintiff submitted that in view of the fact that appearance has already been filed in the suit on behalf of the defendants therefore, in terms of the practice note dated 29th September, 2008, issued by the learned Prothonotary & Senior Master the solicitors of the defendants are obliged to accept the service of the Writ of Summons. It is also submitted that the suit was never placed before the Additional Prothonotary & Senior Master for directions as is usually the case and therefore, in the light thereof the relief sought by the applicant/plaintiff in the Chamber Order could not have been refused. 5. Per contra, it is submitted on behalf of the defendants relying upon a Division Bench Judgment of this Court reported in 2007(5) Bom.C.R.557, that the service of the Writ of Summons is mandatory, and is required to be served within a time stipulated by 4 the Code read with the rules. Even though appearance may have been entered into on behalf of the defendants. 6. Considering the fact that the defendants have filed their appearances in the said suit as also considering the practice note which can only be said to be in aid of effectuating the rules, in my view, the relief sought in the Chamber Summons is required to be granted. The Chamber Summons is, therefore, made absolute in terms of prayer clause (a). 7. In so far as prayer clause (b) is concerned, in view of the practice note dated 29th September, 2008, the plaintiff would be at liberty to serve the Writ of Summons upon the solicitors of the defendants. Mr.Avinash Joshi the learned counsel appearing for the defendants submits that the Writ of Summons would be accepted by the solicitors on behalf of the defendant Nos.1 and 2. The applicant/plaintiff to pay costs of Rs.1000/- to the defendants within a period of four weeks from date. 5 (R.M.SAVANT, J.)