: 1 : SJ-40-08=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 40 OF 2008 IN SUMMARY SUIT NO. 367 OF 2008 Florena Containers Inc. .. Plaintiffs v/s. M/s. Ornate Multimodal Carriers Pvt. Ltd. .. Defendants ......... Mr. Rahul Narichania i/byy Mulla & Mulla for the plaintiffs Mr. K.S. Tripathi for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 21st SEPTEMBER,2010. P.C. : 1. As the matter was called out, learned Counsel appearing on behalf of the defendants pointed out that this Summons for Judgment is not maintainable as the same was taken out prior to the service of the writ of summons upon the defendants. Perused the report in support of this submission. It is noticed that the suit came to be filed on 30th January, 2008 and this Summons for Judgment was taken out on 17th January, 2008 and it was served upon the defendants. On 17th March, 2008 that is very day when writ of summons was served upon the defendants. 2. After having gone through the provisions of Order 37 Rule 3, it is clear that after the service of writ of summons upon the defendants : 2 : SJ-40-08=.sxw within 10 days, defendants have to file Vakalatnama and thereafter Summons for Judgment has to be taken out and it should be served upon the defendants. It is apparent that the Summons for Judgment was taken out before advocate for the defendants filed their appearance as required under Order 37 Rule 3 of CPC. Hence, this summons for judgment is not maintainable as it has been taken at premature stage. With this observation, I am inclined to accept the stand of the defendants that summons for judgment is not maintainable. In view of the above, I am inclined to dismiss the summons for judgment. 2. Hence, the summons for judgment is required to be dismissed as not maintainable. At the same time, order is required to be passed so as to enable the plaintiffs to take appropriate steps in the summary suit in accordance with the provisions of law. Hence, following order is passed to dispose of the summons for judgment. ORDER i. The summons for judgment is held as not maintainable and is dismissed accordingly. There shall be no order as to costs. ii. Plaintiffs are free to attend to the summary suit in accordance with the provisions of law. (R.Y.GANOO, J.)