The court emphasized the importance of understanding and correctly applying procedural rules, and rejected arguments that were misconceived and contrary to the legal provisions.

JUDGMENT

G.S. Patel, J -Not on board. By consent, the Notice of Motion is taken up for hearing and final disposal.

2. The Notice of Motion as currently framed is thoroughly misconceived. It says that there is an ex parte order of SJ Vazifdar J (as he then was) of 7th October 2003, a copy of which is at page 33. This is said to be "ex parte". It is argued that it is required to be set aside because there was no Notice of Motion filed for a judgment for want of written statement. The argument is misconceived and overlooks Rule 89 of the Bombay High Court (Original Side) Rules.

I have already dealt with this aspect of the Rules in a recent judgment in Placido Thomas Aguiar v Elizabeth Lucy D''Souza & Ors. [1]

3. The next argument raised is that the order is to be set aside because the writ of summons was never served. The appearance in that order shows that an Advocate was engaged for all the Defendants. That the Advocate was engaged is actually not disputed. Defendant No. 1 today urges that the vakalatnama in favour of that Advocate was executed by a person who claimed to be entitled to do so on the basis of a Power of Attorney. This person, one Mr K Shrinivas Rao, was, Defendant No. 1 now says, never authorized to represent the 1st Defendant. He held no Power of Attorney.

4. Annexed to the Affidavit in Reply at page 116 is a copy of the letter from M/s. Narayanan & Narayanan, Advocates, forwarding a photocopy of the Power of Attorney in question dated 29th April 1993 said to have been executed by the 1t Defendant in favour of this K Shrinivas Rao. On page 18 of the Power of Attorney (page 134 of the paperbook) is the typed name of the Chairman and Managing Director. There is a rubber stamp of the 1st Defendant. There is a circular common seal of the 1st Defendant. Both have signatures.

The Power of Attorney said to have been notarized in Mumbai and the seal of the Notary is also visible. No steps have been taken whatsoever by the 1st Defendant at any time to have this document cancelled. We will leave that aside.

5. Mr Thorat for the 1st Defendant proceeds on the assumption that there was in fact such a Power of Attorney and there was in fact a validly executed vakalatnama by the Constituted Attorney. His submission is that even if assuming that is so, Rule 79 of the Bombay High Court (Original Side) Rules requires personal service of the writ of summons on a defendant even if appearance was entered on his behalf by an Advocate. Rule 79 says:

"R.79. Undertaking by advocate to accept service.- A Writ of Summons need not be served on a defendant personally, if his Advocate undertakes in writing to accept service, and to file a Vakalatnama."

6. On the face of it, the interpretation placed of this Rule is incorrect. This speaks of a waiver of the requirement of serving the writ of summons personally if the Advocate undertakes in writing to accept service of that writ of summons and to file a vakalatnama. This obviously contemplates a stage before the vakalatnama is in fact filed. Once the vakalatnama is filed, there is no question of having to thereafter serve a party personally. The form of the vakalatnama in fact says to the contrary and by virtue of the vakalatnama the Advocate is not only empowered but required to accept service on behalf of the person for whom he filed the vakalatnama. Otherwise, the filing of a vakalatnama is completely meaningless.

7. The argument completely overlooks the provisions of our Rules on both the Original Side and the Appellate Side and in particular Rule 51 which is in mandatory terms and speaks of what is to happen after a vakalatnama is filed, viz., that once an Advocate has filed his vakalatnama in a suit or a matter, he "shall" accept service on behalf of his client of all processes issued in the suit or matter until he is discharged.

8. Mr Thorat bases his construct on a reading of the decision of a Division Bench in Tardeo Properties Pvt Ltd v Bank of Baroda. , (2007) 5 BomCR 557. I regret h