Rule, returnable forthwith. Heard finally by consent.

2. The Appellant, original Plaintiff, being aggrieved by Order dated 6 May 2011, whereby his Notice of Motion and the Suit are dismissed for want of service of summons.

3. In the suit against the Respondents (Defendants), the Appellant had taken out Notice of Motion No.1334 of 2009 for a grant of necessary ad-interim relief. All the proceedings were duly served. Defendants had appeared through an Advocate. The appearance caused by the Defendants was not restricted to the Notice of Motion as the same was required to be considered as an appearance in the suit. Since the Defendants have duly appeared in the matter and had been served with the proceedings, there was no necessity for service of writ of summons again. The Sheriff report shows that all the necessary steps were taken for the purpose of service of writ of summons. However, the learned trial Judge dismissed the Notice of Motion and the Suit, for non service of writ of summons. The Appellant took out necessary Notice of Motion for restoration of the suit. The same also dismissed by the impugned order.

4. The relevant extract of roznama/order is as under:

“Defts 1 to 3 are duly served with N/M on 18/4/11 & 27/4/11 reply.

However Deft 1 has not filed reply, Deft 2 & 3 absented, hence N/m to proceed without reply of Deft 1 & ex-part in respect of Deft 2 & 3.

N/m No.844/11 has been re-lodged by the Adv of Plff after registration.

Deft 1 & Defts 2 & 3 are duly served with writ of summons on 28/2/11 & 27/4/11 reply r/o today.

Heard holding adv. Of plff.

The plff has prayed for setting aside dismissal order of suit dtd 22/3/11.

The suit came to be dismissed due to failure of the plff to serve W.sum to the Defts. After having had given direction thereto on 17/1/11 & 21/2/11.

In the affidavit filed in support of the N/M, it is highlighted that appearance of advs of parties does not require service of W/sum hence, on this background suit came to be dismissed.

Therefore N/m deserves to be allowed.

The above said evidence found to be of no help to set aside the order of dismissal of. No sufficient grounds made out to set aside the above order. Hence N/m no.844/11 is dismissed.”

5. The relevant rules of The Bombay City Civil and Sessions Courts Rules, 1948 are as under :

51. Summons to defendant. – The summons to a defendant to appear and answer shall be in one of the Forms Nos.3, 4 and 5 with such variations as the circumstances of the case may require.

51.A Name and address of the Advocate to be stated in every process. – The name and address of the Advocate appearing for a party shall be stated in every writ of summons, witness summons, Notice of Motion, Chamber Summons, notice, or warrant, and every process of the Court issued at his instance or taken by him.

56. Undertaking by Advocate. -A writ of summons need not be served on a defendant personally, if he has appeared and if his Advocate undertakes in writing to accept service.

59. Notice of written statement in summons when called for. – When a written statement shall be called for from a defendant in the first instance, notice to that effect shall be given in the margin of the writ of summons calling on the defendant within four weeks from the service thereof (unless the Judge shall otherwise order) to file his written statement and serve a copy thereof on the plaintiff or his Advocate.

60. Judgment for want of written statement. - Application for judgment for want of written statement shall be made by motion on notice to the opposite party, but no such motion shall be made before the date on which the summons is returnable. On the filing of an affidavit of service of the notice of motion, the suit shall be set down on the daily board for the purpose of such application. This rule shall not apply to commercial causes which shall be governed by rule 118.”

6. Order V of Code of Civil Procedure (CPC) deals with the service of summons. Relevant Rules are 1, 6, 10, 1