Filing Vakalatnama Is Not Waiver Of Service Of Summons; Limitation To File Written Statement Starts After Proper Service: Bombay High Court

The Bombay High Court has held that the mere filing of a Vakalatnama or an affidavit-in-reply to an interim application does not, by itself, amount to a waiver of service of writ of summons or trigger the limitation prescribed under Order VIII Rule 1 of the Code of Civil Procedure, 1908 for filing a written statement. The Court observed that the period for filing the written statement commences only upon proper service of the writ of summons, an express waiver thereof, or an order of the Court directing the defendant to file the written statement.

Justice Gauri Godse was hearing two writ petitions filed by the defendant challenging the orders of the City Civil Court rejecting its applications for condonation of delay in filing written statements. The plaintiffs had instituted suits in 2011 seeking specific performance of agreements under the Maharashtra Ownership Flats Act, 1963, for execution and registration of agreements in respect of flats booked in the defendant's project. The defendant applied for condonation of a delay of 2,754 days in filing its written statements. The trial court rejected the applications, holding that by filing a Vakalatnama and replying to the interim applications, the defendant had waived service of summons and that there was no satisfactory explanation for the delay.

The plaintiffs relied upon the Division Bench decision in Meena Ramesh Lulla v. Omprakash A. Alreja to contend that once the defendant had received the plaint and annexures and filed a reply on the merits, formal service of summons became unnecessary and the time to file the written statement had commenced.

The Court observed that Order VIII Rule 1 expressly provides that the period for filing the written statement begins from the date of service of summons. The Court further noted that the applicable Rules contemplate issuance of a writ of summons requiring the defendant to file a written statement within the prescribed period and that, in the absence of such service, or a court order directing filing of the written statement, the limitation under Order VIII Rule 1 does not commence.

Distinguishing Meena Ramesh Lulla, the Court observed that the issue before the Division Bench in that case concerned restoration of a suit dismissed for failure to serve summons and not the commencement of limitation for filing a written statement. It held that the observations made therein regarding waiver of summons could not be treated as laying down that filing a Vakalatnama or reply to an interim application automatically starts the limitation under Order VIII Rule 1 in every case.

The Court held that there was neither proper service of the writ of summons, nor any express waiver thereof, nor any order directing the defendant to file a written statement. It observed that the defendant's application for condonation of delay had been filed merely as a matter of precaution and could not itself amount to a waiver of service of summons.

“Mere filing of the Vakalatnama and reply to the application for interim relief would not mean that the period contemplated under Order VIII Rule 1 of the CPC would commence for filing the written statement,” the Court observed.

Accordingly, the Court allowed the writ petitions and quashed the trial court's orders rejecting the applications for condonation of delay.

Case Title: M/s. Real Gem Buildtech Pvt. Ltd. v. M/s. East Tradvest Pvt. Ltd. [Writ Petition No. 10181 of 2019] With M/s. Real Gem Buildtech Pvt. Ltd. v. M/s. Mayuresh Structure Pvt. Ltd. [Writ Petition No. 10076 of 2019]

Citation: 2026 LiveLaw (Bom) 325

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