SRJ wp-8075-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8075 OF 2009 Abdul R. Motiwala .. Petitioner V/s. Dharamraj S. Yadav & Others .. Respondents. Mr. Amit Sheth, for Petitioner. Mr. M.V.Singh, for Respondent Nos.1 and 2. CORAM : A.S.OKA, J. DATE : 29th MARCH,2010. P.C. : 1] Heard Learned Counsel appearing for the Petitioner and the learned counsel for the 1 st and 2 nd Respondent. Notice for final disposal was issued on 11 th February, 2010. The Petitioner is the 1 st Defendant in a suit filed by the 1 st and 2 nd Respondents. The 3 rd Respondent is the 2 nd Defendant. In the suit filed in the year 2005, an order was passed by the Trial Court against Petitioner on 28 th August, 2005, directing that the suit will proceed without written statement of the Petitioner. An application was made by the Petitioner on 18 th September, 2008 praying for setting aside the said order. Another application was made by the Petitioner, for condonation of delay in filing written statement. By the impugned order, both the applications have been rejected. SRJ wp-8075-09.sxw 2 2] The Learned Counsel appearing for the Petitioner submitted that in fact, there is no service of suit summons to the Petitioner. He invited my attention to the report of the bailiff annexed to the Petition. He pointed out that in the said report even the address of the Petitioner is not mentioned and the summons has been served on the 2 nd Defendant (3 rd Respondent) herein who claims to be a Constituted Attorney of the Petitioner. He submitted that the Petitioner had never executed any Power of Attorney in favour of the 3 rd Respondent and in fact, he had executed a Power of Attorney in favour of his own son. He submitted that as there was no service of the summons to the Petitioner, the order of the Trial Court to proceed with the suit without his written statement is illegal. He submitted that the Petitioner is very old and sick and he has already executed a Power of Attorney in favour of his son. He submitted that the Trial Court ought to have allowed the applications. The Learned Counsel appearing for the 1 st and 2 nd Respondents supported the impugned order. 3] I have given careful consideration to the submissions. The main contention of the Petitioner is that he was not served with the suit summons. In both the applications on which the impugned order has been passed and in particular, in second paragraph of the application for setting aside ex-parte order, the Petitioner has specifically admitted service of the suit summons and he has stated that due to old age and sickness, he could not SRJ wp-8075-09.sxw 3 remain present in the court after service of summons. Moreover, the Petitioner has stated that he had appointed his son as a Constituted Attorney. It is stated that as his son is frequently going abroad, he could not meet the Advocate and file Vakalatnama of his Advocate. Both the Applications proceed on the footing that the Petitioner was duly served with the suit summons. Moreover, the Learned Counsel appearing for 1 st and 2 nd Respondents has placed on record a certified copy of application at Ex.57 made on behalf of the Petitioner on 12 th December, 2007 before the Trial Court seeking time to file written statement. The said application was rejected as already an order was passed against the Petitioner to proceed without the written statement. Thus, the stand taken in the Writ Petition that the Petitioner was not served with the suit summons is completely contrary to what is admitted in the applications on which the impugned order has been passed. The fact that the Petitioner was served with suit summons has been admitted in so many words in both the applications. In the circumstances, there is no case made out to exercise jurisdiction under article 227 of Constitution of India. The Petition is rejected. 4] The Petitioner has deposited a sum of Rs.5,000/- towards costs payable to 1 st and 2 nd Respondents. The said Respondents are permitted to withdraw the said amount. (A.S.OKA, J. ) SRJ wp-8075-09.sxw 4