Skip to content


Ramchandra Vithal Varadkar Vs. the Trustees of the Port of Bombay - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number O.C.J. Suit No. 1936 of 1929
Judge
Reported in(1930)32BOMLR1333
AppellantRamchandra Vithal Varadkar
RespondentThe Trustees of the Port of Bombay
Excerpt:
bombay high court rules (original side), 1922, rule 96 - 1980 edn., rule 101-copy (if plaint-defendant-attorney of defendant -right to receive copy.;under rule 96 of the bombay high court rules (original side) 1922, once a suit has been instituted, the defendant to that suit or a person representing himself to be an attorney of that defendant is entitled to be furnished with a copy of the plaint and exhibits annexed thereto. it is not necessary that either the defendant should be served with a summons or that his attorney should file an appearance in court. - - inasmuch as that rule provides in terms that any defendant or his attorney shall be furnished on application to the plaintiff or his attorney with the plaint and exhibits annexed thereto, i am clearly of opinion that once a suit..........or such officer as it appoints in this behalf.' order v deals with the issue and service of the summons. rule 1, sub-paragraph (1) of that order is in these terms:-' when a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified.' the proviso to that rule is of importance, and is in these terms :-'provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim.' in mr. mulla's commentary on the code of civil procedure, there is a note at the foot of order v, rule 1, which is in these terms:-' the proviso to sub-rule (1) contemplates cases where a decree may be passed against a defendant without issue or service of summons.....
Judgment:

Blackwell, J.

1. This is a summons for an order that the plaintiff's attorneys do forthwith deliver to the defendants' attorney Mr. J. D. Sherston Baker a complete copy of the plaint and proceedings in this suit and that the plaintiff do pay to the defendants their coats. It appears from the affidavit of Mr. Sherston Baker, filed on October 11, 1929, that he is the solicitor of the Trustees of the Port of Bombay who are the defendants in the suit. During his temporary absence from India, Mr. G. Louis Walker- was appointed acting solicitor of the Trustees, and the correspondence took place between the plaintiff's attorneys Messrs. Dabholkar and Jestaram and Mr. Louis Walker. Mr. Sherston Baker returned to India on August 16 last, and resumed his office of solicitor of the Trustees, On October 4, 1929, the plaintiff's attorneys addressed a letter to Mr. Walker, as the solicitor of the Trustees, informing him that their client, the plaintiff in this suit, had filed this suit against the trustees. On October 7, Mr. Sherston Baker wrote stating that he would accept service of the writ of summons on behalf of his clients, and asked for a copy of the plaint and proceedings.

2. The plaintiff's attorneys objected to supplying a copy of the plaint and proceedings unless Mr. Sherston Baker filed an appearance in Court. In the affidavit of Ramchandra Vithal Varadkar, the plaintiff, in reply to the chamber summons, it is alleged that the Trustees for the Port of Bombay could not be said to be the defendants in this suit when the present summons was taken out, the ground for this allegation being that the writ of summons had not then been served.

3. The question for decision depends upon the proper construction to be placed upon Rule 96 of the Rules of the High Court. That rule is in these terms :-

Any defendant, or his attorney, applying to the plaintiff, or his attorney, for a copy of the plaint and exhibits annexed thereto, shall be furnished with the same, but, where several of the defendants are represented by the same attorney, it shall be sufficient to supply one copy of the plaint and exhibits to such attorney.

4. The institution of suits is regulated by Order IV of the Civil Procedure Code, by Rule 1, sub-paragraph (1) of which it is provided that 'every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.' Order V deals with the issue and service of the summons. Rule 1, sub-paragraph (1) of that order is in these terms:-' When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified.' The proviso to that rule is of importance, and is in these terms :-'Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim.' In Mr. Mulla's commentary on the Code of Civil Procedure, there is a note at the foot of Order V, Rule 1, which is in these terms:-' The proviso to Sub-rule (1) contemplates cases where a decree may be passed against a defendant without issue or service of summons upon him,' and a reference is made to the case of Bank of Bengal v. Currie and Co. (1869) 3 B. L.R. 396.

5. In my opinion the contention raised by the plaintiff on this summons that the defendants are not the defendants to the suit unless and until a summons has been taken out and served is hopeless. Reference was made in support of the argument for the plaintiff to Rule 104(A) of the High Court Rules which provides that 'a writ of summons need not be served on a defendant personally, if his attorney undertakes in writing to accept service, and to enter an appearance.' Rule 109 which also deals with the appearance of the defendant was also relied on. In my opinion neither of these rules has any bearing whatever upon the point which I have s o decide The learned Counsel for the plaintiff referred me to Re Gray : Gray v. Coles (1891) 65 L. T. 743. That was a case in which a solicitor without obtaining authority from his client purported to enter an appearance for the client, and Mr. Justice North held that there is no such thing as a general retainer of a solicitor, that the authority to enter an appearance must be obtained in each case, and that if an appearance is entered without authority, the client has a right to have the appearance vacated. In my opinion that case has no application whatever to the point which I have to decide, namely, what is the proper construction of Rule 96 of the High Court Rules? inasmuch as that rule provides in terms that any defendant or his attorney shall be furnished on application to the plaintiff or his attorney with the plaint and exhibits annexed thereto, I am clearly of opinion that once a suit has been instituted, the defendant to that suit or a person representing himself to be an attorney of that defendant is entitled under that rule to be furnished with a copy of the plaint and exhibits annexed thereto. It has been suggested that there might be cases in which, an attorney, without any authority, might apply to the plaintiff' or his attorney for copy of the plaint and exhibits. If any attorney, without any authority from his client, applies to the plaintiff or his attorney for a copy of the plaint and proceedings, then he can be properly dealt with, That argument has no bearing on this question.

6. Accordingly, I make this summons absolute with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //