[1] IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.341 OF 2003 IN NOTICE OF MOTION NO.3568 OF 2002 IN SUMMONS FOR JUDGMENT NO.831 OF 2002 IN SUMMARY SUIT NO.1443 OF 2002 M/s. Fire Protection Systems, a registered Partnership Firm, having its registered office at 3/7, Five Star Apartments, Bunden Garden Road, Pune - 411 001 and Bombay office at D-6, Beach House Co-op. Housing Society, Gandhigram Road, Juhu, Bombay-400 049. .... Appellant - Versus - Panjak Champaklal Gandhi, Aged about 42 years, an Indian Inhabitant, residing at 21, Gautam View CHS Ltd., Seven Bunglow, Andheri (West), Mumbai-400 050 and also at 6, Nirmal Mahal, Bomanji Petit Road, Near Parsi General Hospital, Mumbai-400 036. .... Respondent Shri D.R. Sanghvi for the Appellant. Shri P.C. Gandhi, the Respondent, in-person. CORAM: CORAM: CORAM: SRI R.M.S. KHANDEPARKAR & SRI P.B. MAJMUDAR, JJ. DATED: DATED: DATED: JUNE 02, 2008 ORAL JUDGMENT (Per Sri P.B. Majmudar, J.): ORAL JUDGMENT (Per Sri P.B. Majmudar, J.): ORAL JUDGMENT (Per Sri P.B. Majmudar, J.): 1. This appeal is directed against the order of the learned single Judge, dated 9-1-2003, passed in Notice of Motion No.3568 of 2002 in Summons for Judgment No.831 [2] of 2002 in Summary Suit No.1443 of 2002. The appellant is the original plaintiff and the summary suit has been filed against the respondent-defendant for getting decree of Rs.5,00,000/-. The said suit is filed as a summary suit under Order 37 of the Code of Civil Procedure (for the sake of brevity, hereinafer called as "the CPC"). In the aforestated said suit, the learned single Judge passed a decree on 10-12-2002 on the ground that the defendant failed to seek leave to defend the suit and, therefore, the decree was passed in view of failure on the part of the defendant to submit an application for leave to defend the suit. The present respondent thereafter moved an application under Order 37, Rule 4 of the CPC for setting aside the said decree on the ground that he was prevented by sufficient reasons from appearing in the suit and that in view of the special facts and circumstances of the case, the decree is required to be set aside under the provisions of Order 37, Rule 4 of the CPC. The said application was resisted by the present appellant on the ground that the defendant has failed to make out any case for submitting the application for leave to defend the suit as well as on the ground that no circumstances exist, much less special circumstances exist to set aside the decree under Order 37, Rule 4 of the CPC. Before the learned single Judge, a submission was made on behalf of the defendant that the summons for judgment was wrongly [3] served on Advocate Shri K.R. Dhanuka as he was not authorised to accept the summons for judgment. The case of the defendant before the learned single Judge was that simply because Shri Dhanuka was appearing for the defendant in other proceedings is no ground for service of summons on him in the present suit as in the present suit the defendant had not engaged him and, therefore, he was not entitled to accept the application for summons for judgment. The learned single Judge, after hearing the Advocates for both the sides and after going through the proceedings of the case, allowed the said application and restored the suit to the file by setting aside the ex parte decree by holding that the defendant was not properly served upon and the service on the Advocate Shri Dhanuka cannot be said to be a valid service as per law. While deciding the said application, the learned single Judge has also came to the conclusion that the suit of the plaintiff is prima facie time barred and the Court may not have territorial jurisdiction to adjudicate the dispute. On the aforesaid grounds, the application submitted by the respondent was allowed by the learned single Judge. The aforesaid order of the learned single Judge is impugned at the instance of the original plaintiff by way of this appeal. 2. Learned counsel for the appellant submitted that by [4] the conduct of the defendant it could have been inferred by the learned single Judge that he was legally served and, therefore, on the ground of failure to serve the application for leave to defend, the decree could not have been set aside. Learned counsel appearing for the appellant submitted that since Shri Dhanuka was appearing in the other proceedings, the service of the summons for judgment on the said Advocate could have been treated to be a valid service and it was not obligatory on the part of the plaintiffs to serve the defendant again. Learned counsel appearing for the appellant also submitted that the Court at Bombay was having territorial jurisdiction to decide the dispute and that the learned single Judge has committed error in holding that the Court at Bombay may not have territorial jurisdiction to entertain the suit. Learned counsel appearing for the appellant further submitted that earlier the suit was filed within the limitation period and the same was ultimately withdrawn in order to file the present suit and, therefore, it cannot be said that the suit is filed beyond the period of limitation, and that the suit was filed within the period of limitation. 3. On the said ground, the respondent, who is appearing as party in person, submitted that since there was no valid service of summons for judgment on him, he was [5] prevented from appearing in the suit and, therefore, he has made out a special case for setting aside the decree passed under Order 37, Rule 4 of the CPC. He further submitted that prima facie the findings arrived at by the learned single Judge regarding territorial jurisdiction as well as regarding the limitation is correct and, therefore, the order of the learned single Judge requires no interference at our hands in this appeal. 4. We have heard the learned Advocate for the appellant as well as the respondent in-person. We have perused the record and proceedings as well as the order of the learned single Judge. The first question which requires consideration is whether the summons for judgment was served on the defendant as per law and the service of the same on the Advocate would constitute sufficient service. In this behalf, it is required to be noted that so far as the present suit is concerned, at the relevant time the learned Advocate Shri Dhanuka was not appearing nor he had submitted any Vakalatnama in the present suit. It is true that he was appearing in other proceedings on behalf of the defendant but, in our view, that itself is not enough to suggest that in the present proceedings the plaintiff was not required to serve the defendant at the time of applying for summons for judgment. It is not in dispute that the defendant was [6] not served by the plaintiff in this behalf and, secondly, the aforesaid factual aspect of the matter to the effect that Shri Dhanuka was not appearing for the defendant at the relevant time and the service on the said Advocate or intimation given to the said Advocate cannot be said to be a proper service, as required by law. Merely because Shri Dhanuka might have appeared in the earlier proceedings, that by itself cannot be said to be a ground for serving the summons for judgment on the Advocate Shri Dhanuka. The summons for judgment is required to be served in accordance with the law as provided under Order 37, Rule 4 of the CPC. Since it is not in dispute that the defendant was not served with the summons for judgment and the service upon Advocate Shri Dhanuka cannot be said to be a valid service in view of what is stated herein above, in our view, the learned single Judge was perfectly justified in allowing the application on the aforesaid ground. The Rule 4 of Order 37 of the CPC provides as under: "4. Power to set aside decree. - 4. Power to set aside decree. - 4. Power to set aside decree. - After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the [7] Court so to do, and on such terms as the Court thinks fit." In our view, in view of the aforesaid fact, it can be said that the defendant has made out a special case for setting aside the ex parte decree as contemplated by the aforesaid Order as there was no valid service on the defendant. 5. The next question which requires consideration is whether at the time of deciding the application under Order 37 of the CPC, the learned single Judge was justified in giving prima facie finding as regards the territorial jurisdiction as well as with regard to the question about the limitation in connection with the filing of the suit. So far as the aforesaid two aspects are concerned, in our view, at the time of deciding the application under Order 37, Rule 4 of the CPC the Court was required to consider special circumstances. In the present case, the fact that the summons for judgment was not served on the defendant constitute special circumstances and since it is not in dispute that the summons for judgment was not served on the defendant, that would be sufficient to constitute the ground available to the defendant under Order 37, Rule 4 of the CPC. So far as the finding of the learned single Judge regarding the question about limitation as well as [8] regarding territorial jurisdiction is concerned, same will be construed only as a tentative finding only in aid of considering special circumstances and not beyond that. In fact, it was not necessary for the learned single Judge to go into the detail. Surely, at the time of deciding the application for setting aside the ex parte decree, it was not required by the learned single Judge to decide the aforesaid two aspects. Accordingly, we hold that the prima facie findings of the learned single Judge in connection with the question of territorial jurisdiction as well as in connection with the question about limitation will have no bearing and the said aspect is required to be decided at an appropriate stage as and when the plaintiff places afresh summons for judgment. We, however, clarify that as and when any such application is made, the learned single Judge may decide the said application de novo and in accordance with law, after hearing both the parties. The point regarding limitation as well as territorial jurisdiction is kept open for consideration in the proceedings. Accordingly, the finding of the learned single Judge regarding the point of territorial jurisdiction and limitation is kept open, by setting aside the same. 6. Subject to what is stated above, the appeal is disposed of and it will be open for the plaintiff for [9] taking fresh summons for judgment and at that time it will be open to the defendant to resist the same on all available grounds as per law. There shall be no order as to costs. (P.B.Majmudar, J.) (R.M.S.Khandeparkar, J.) sjs/J8aj341.3 sjs/J8aj341.3 sjs/J8aj341.3