The main legal point established in the judgment is the necessity of service of summons to enable the defendant to file the written statement, and the court's emphasis on the failure to comply with this requirement as a jurisdictional error.

( 1 ) THIS appeal arises from the judgment dated 20-12-1996 passed in Suit No. 1567 of 1987. By the impugned judgment, the suit has been sought to be decreed purportedly in exercise of powers under Order 8, Rule 10 of the Code of Civil procedure, hereinafter called as "the CPC".

( 2 ) THE respondents/ plaintiffs filed suit for specific performance of the agreements dated 10-8-1984. Under the said agreements, the plaintiffs had agreed to purchase 20 flats and 10 car parking spaces in the building known as "shirin Apartments" stated to have been constructed by the appellants/defendants in the property at Tardeo Road, Mumbai. It is the case of the plaintiffs that all the said agreements were registered under the provisions of law and the plaintiffs had paid to the defendants from time to time a total sum of Rs. 1,32,00,000/- towards the purchase price of the said flats and the parking spaces, besides, Rs. 1,01,500/- for the registration charges and Rs. 50,000/- towards the other legal charges. It is further case of the plaintiffs that the defendants were bound to obtain certificate from the concerned authorities and handover the possession of the premises. It is further case of the plaintiffs that the defendants sought extension from time to time on one pretext or the other but failed to keep their promise and as there was valid and subsisting agreements for sale of the flats and the parking spaces and since the plaintiffs were entitled for specific performance, the suit had to be filed.

( 3 ) WHEN the matter came up for hearing before the trial Court on 20-12-1996, only the plaintiffs Advocate appeared. As far as the defendants were concerned, neither they were present nor was any Advocate on their behalf. The Court recording that the defendants were duly served with the writ of summons, that they were represented by the advocate from time to time, and that they had failed to file the written statement, the plaintiffs were held to be entitled for judgment and decree under Order 8, Rule 10 of the CPC, and accordingly the suit was decreed as above.

( 4 ) IN terms of the decree, it has been declared that the agreements dated 10-8-1984 in respect of 20 flats and 10 car parking spaces, as described in the plaint, were valid, subsisting and binding on the parties and the defendants were directed to specifically perform the said agreements and to perform all their obligations under the said agreements and to convey the suit flats in favour of the plaintiffs within six months, while appointing Court Receiver in execution of the proceedings, also ordered the defendants to pay a sum of Rs. 35,85,123. 27 paise as the compensation for not obtaining the occupancy certificate and giving the possession of the flats and the parking spaces within the stipulated period and further directing the payment of interest at the rate of 10% per annum on the said amount from the date of filing of the suit till the date of delivery of possession, as also for payment of costs.

( 5 ) THE challenge to the impugned judgment is on the ground that the impugned judgment wrongly proceeds on the basis that the writ of summons was served upon the defendants when factually the defendants were never served with the writ of summons in the suit. It is the case on behalf of the appellants that though the Advocate for the appellants had filed appearance in the interlocutory applications filed in the suit, such an appearance does not amount to appearance in the suit itself so as to enable the Court to proceed under Order 8, Rule 10 of the CPC, it is their further contention that even if the advocate had filed appearance on behalf of the defendants in the suit itself, it would merely enable the plaintiffs under the Original side Rules of the High Court to serve the writ of summons upon the Advocate concerned but under no circumstances there can be either implied service of the writ of summons or waiver of the writ of summons merely by filing the app