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Kedarnath Mattulal Vaish and anr. Vs. Baboolal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 143 of 1975
Judge
Reported inAIR1976MP62
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 30, Rules 3, 5 and 10
AppellantKedarnath Mattulal Vaish and anr.
RespondentBaboolal and anr.
Appellant AdvocateH.B. Mangal, Adv.
Respondent AdvocateM.L. Gupta, Adv.
DispositionPetition allowed
Cases ReferredGambirmal Pandiya v. J. K. Jute Mills Co. Ltd. Kanpur.
Excerpt:
.....against the applicant no. the trial court should order the plaintiff-non-applicant to furnish further and better particulars as to the constitution of the firm (applicant no......of the firm m/s. mattulal kashinath (applicant no. 2) whether it is a partnership firm or a joint family firm or is merely the name and style in which the applicant no, 1 carries on his business. the applicant no. 1 has in his written statement inter alia averred that applicant no. 2 firm is a joint family firm of which kashinath is the manager. in the ex parte evidence led by non-applicants nothing has appeared about the constitution of the firm (applicant no. 1); the only fact obtainable from that evidence is that applicant no. 1 and kashinath are brothers; but this statement also is of noconsequence to reflect about the constitution of this firm. this relationship only enables to presume that they are members of a joint family, but not that the business is also a joint family.....
Judgment:
ORDER

U.N. Bachawat, J.

1. This revision petition is directed against the order dated 21-3-1975 of the Third Civil Judge, Class II Gwalior in Civil Original Suit No. 255A/73.

2. The material facts necessary to decide this revision petition briefly stated are these. The applicant No. 1 was defendant No. 2 and applicant No. 2 was defendant No. 1 in the trial Court. The non-applicants (Plaintiffs) brought a suit against these applicants for ejectment and arrears of rent contending inter alia that the suit premises were taken on rent by applicant No. 1, in the trade name 'M/s. Mattulal Kashinath', that he is carrying on Kirana business in it. It is also averred in the plaint that possibly applicant No. 2 might be a partnership firm in which applicant No. 1 and some others may be the partners. The relevant averments to this effect are set out below:

;g fd izfroknh uEcj 2 izfroknh uEcj dsVsMuse ls fdjkus dk O;kikjh gS vkSj mlus VsMuse eV~Vwyky dk'khukFk lsoknhx.k ds lkFk fdjk;snkjh dk O;ogkj fd;k gSaA bl VsMuse ds O;kikj esa lEHkor%vU; O;fDr Hkh Hkkxhnkj gks ldrs gSa ijUrq oknhx.k dks bldh dksbZ tkudkjh ughagSA vr% nkok VsMuse izfroknh ua dks Hkh izfroknh cukdj izLrqr gSaA vr;tokonkj O;fDr;ksa ds f[kykQ muds uke lkeus vkus ij fof/kor yho Vw ,DthD;wVoknhx.k ;Fkk le; izkIr djsaxsA izfroknh ua- 2 us gh pwafd fdjk;snkh dk O;ogkjfd;k gSA blfy;s mls O;fDrxr :i ls Hkh izfroknh cuk;k tkrk gSaA ;g fd oknxzLrnqdku esa dsnkj ukFk iq=

eV~Vwyky oS'; fdjkus dk dkjksckj VsMuseeV~Vwyky dk'khukFk ds uke ls djrk gSA oknxzLr nqdku izfroknh ds ikl '' :i;sekfld fdjk;s ij gksdj fdjk;snkjh ekSf[kd :i ls izkjEHk gqbZ vkSj fdjk;s ys nsdjpkyw jgh jgh gSa vkSj ;g fd fdjk;snkjh ekfld gksdj izR;sd vaxzsth ekl dh izFkefnukad ls izkjaHk gksrh gSA

3. The service of the summons be ing effected on applicant No. 2, he filed a written statement on behalf of himself con-trovertmg the plaint allegations wheirein be inter alia contended that the applicant No. 2 is a Joint Hindu family firm of which Kashi-nath is the Manager; that he has no concern with it and that he has been unnecessarily sued.

4. After framing of the issues when the case was at the stage of consideration of an application filed by applicant No. 1 far amendment of the issues under Order 14 Rule 5 C. P. C. when on 28-10-1974 the learned counsel for the non-applicants brought it to the notice of the trial Court that applicant No. 1, on whom the service was effected far himself and for applicant No. 2 had filed the written statement on his own behalf, the trial Court ordered No. 2, to proceed ex parte against applicant No. 2, On 4-12-1974, the non-applicants got the suit dismissed against applicant No. 1 stating:--

oknh vfe us izdV fd;k fd pwafd izfr ds fo:),DlikVhZ gks pqdk gSa rFkk ;g izfr 2 ds fo:) O;fDrxr dsiflVh esa dksbZ fjyhQugha pkgrs vr% mlds fo:) ckn fujLr dj fn;k tkosA iqu% izfr 2 ds fo:) mDr dkj.kds okn fujLr fd;k x;kA

It would be of significant relevance to state here that on this date there was a torrent of applications on behalf of applicant No. 2, the substance of all of them was that as it is averred in the plaint that M/s. Mattulal Kashinath is his trade name he has beea served with the summons for applicant No. 2 be be permitted to represent and defend it; the written statement filed by him be treated to be the written statement on behalf of applicant No. 2 permitting him to amend that written statement so as to mention that it is on behalf of applicant No. 2 also and the order to proceed ex parte against the applicant No, 2 be set aside. The trial Court rejected all these applications on the sole ground that as applicant No. 2 was not prepared to state in the written statement that M/s. Mattulal Kashinath is his trade name, he could not be permitted to represent it. To quote (the relevant portion from the ordersheet dated 4-12-1974 of the trial Court)'

izfr- 2 us ,d vkosnu }kjk ;kpuk dh gS fdeV~Vwyky dklhukFk my>u VsMuse gSaA ftl :i esa mls i{kdkj cuk;k x;k gSa ;gla;qDr ifjokj dh QeZ gSaA pwafd og izfr- 2 d :i esa Hkh fMQsUM dj jgk gSaA mDrizld ls fdlh vujko nkos dh vko';drk ugha gSaA mDr izfr- o QeZ ds fo:) ,DlikVhZvkns'k fujLr fd;k tkos o orZeku tokc nkos dks Hkh tokc nkok ekuk tkosA

izfr- dks dgk x;k fd ;fn og mDr vk'; dk la'kks/kuizfri= esa dj bu rF;ksa dks fjdkMZ ik ykuk pkgs- rc mls QeZ ds :i esa Hkh fMQsUMdk volj fn;k tk ldrk gSaA

On this date the ex parte evidence in the suit on behalf of the non-applicants was also recorded.

5. Again on 16-12-1974, the applicant No, 1 made an application repeating his prayer for setting aside the ex parte order against applicant No. 2 and permitting him to defend it, substantially on those very grounds which were urged on 4-12-1974; which has been rejected vide the impugned order and the case is posted for judgment by the trial Court, Hence this revision petition has been filed.

6. A preliminary objection was raised by the learned counsel for the non-applicants that Mattulal applicant No. 1 has no locus standi to file the present revision petition. His argument was that the suit against Mattulal has already been dismissed against him, accepting his averment that he has nothing to do with applicant No. 2 and when on his own showing he has no concern with that i. e. applicant No. 2, he cannot file any revision petition on its behalf.

7. The powers under Section 115 C. P. C. are intended to be exercised with a view to subserve the ends of justice. The powers of this Court under Section 115 of the Code are visitorial supervisory powers and the Court in exercise of these powers is competent to call for the record and pass necessary orders. It is not necessary that an application by a party should be filed; the Court can act suo motu. After having heard tbe parties and on the perusal of the record I am satisfied that it is one of these rare cases where this Court should even act suo motu and pass suitable orders. In view of this, the preliminary objection needs no decision.

8. It appears in the instant case the parties are not candid in submitting their res-pective cases; each one is keeping back the true facts and trying to play on the jugglery of law. I would guard myself from expressing any opinion on the question of merits the case apd say that the fore-mentioned observations relate to the limited question as to who and how to be sued in the instant case.

9. As would appear from the re'sume' of the facts given herein above, the non-applicants having accepted the contention of the applicant No. 1 that he has no concern with applicant No. 2 got the suit against him dismissed stating that their suit against him be dismissed as they did not seek any relief against him in his personal capacity. The applicant No. 1, the suit having been dismissed against him on the acceptance of his representation stated herein above, wanted to represent the applicant No. 2 and defend the suit against it without disclosing the capacity and/or interest in which he wanted to act for and on behalf of it, or his interest in it. The only conceivable reason therefore seems to be to escape the liability in the event of the suit being decreed, The non-applicants have after getting the suit dismissed, on the basis of the service of summons on applicant No. 1 for applicant No. 2 obtained an ex parte order on the ground that applicant No. 1 did not file appearance and/ or written statement on behalf of it, the can-ceivable reason for this seems to be to have a smooth sailing and obtain an ex parte decree in tbe suit. But the trial Court should not have acted without applying its mind to the relevant provisions regarding the procedure to be adopted in such cases.

10. The provisions governing the procedure regarding institution of suits by or against a firm and against a person carrying on business in a name other than his own are contained in Order 30 of the Code. All the Rules in this Order relate to partnership firm except Rule 10 which provides regarding the institution of suits against a person carrying on business in a name other than his own.

11. It is of significant relevance here that to attract the applicability of any of the provisions contained in the aforesaid order it is first essential to determine the constitution of the defendant firm. In the instant case, as is evident from Para. 2 of the plaint, the non-applicants are not aware the constitution of the firm M/s. Mattulal Kashinath (applicant No. 2) whether it is a partnership firm or a joint family firm or is merely the name and style in which the applicant No, 1 carries on his business. The applicant No. 1 has in his written statement inter alia averred that applicant No. 2 firm is a joint family firm of which Kashinath is the manager. In the ex parte evidence led by non-applicants nothing has appeared about the constitution of the firm (applicant No. 1); the only fact obtainable from that evidence is that applicant No. 1 and Kashinath are brothers; but this statement also is of noconsequence to reflect about the constitution of this firm. This relationship only enables to presume that they are members of a joint family, but not that the business is also a joint family business.

12. In such a state of affairs, more particularly when the suit against the applicant No. 1 was dismissed in the circumstances stated herein above, the Court below could not have proceeded ex parte aganist applicant No. 2 on the basis of service of summons for it on applicant No. 1.

13. Regarding the constitution of the firm (applicant No. 2) there could be either of the three possibilities;

(i) a trade name of an individual; or

(ii) a partnership firm; or

(iii) a joint Hindu family carrying on business in this firm name.

14. Applicant No. 1 having been dircharged by the plaintiff from the suit, it is out of question that he as the sole proprietor carries on business under the name and style of M/s Mattulal Kashinath. Thus, the other two possibilities survive i. e. it is either a partnership firm or a joint Hindu family firm, Assuming it (to be) either of the two, I shall proceed to examine whether the service for it on applicant No. 1, in the set of circumstances already discussed above was proper.

13. First, I proceed to discuss assuming it to be a partnership firm. The relevant rule providing for service of summons when it is sued as such is rule, 3 of Order 30 C. P, C. It provides that summons shall be served either upon any one or more of the partners, or at the principal place at which the partnership business is carried on, upon any person having at the time of service the control or management of the part-nership business there, as the Court may direct and that as required by Rule 5 of the same Order the perron on whom the summons is served has to be informed by notice in writing at the time of such service whether he was served as a partner or as a person having control or management of the partnership business or under both characters; of course, in default of such notice, the person served shall be deemed to be served as a partner. In the instant case, either in the cause title or the body of the plaint it is not mentioned that applicant No. 1 is the partner of this firm, and summons was to be served on him in that capacity,

16. Secondly what is mentioned in the summons is 'M/s. Mattulal Kashinath through Kedarnath S/o Mattulal Kirana Merchant .....' which also does not indicatethat applicant was served either in the capacity or a partner or in the capacity of his having the management and control of the business of the firm and was served at the business premises of the firm.

17. As a result of this discussion, the service of the summons on applicant No. 1 for applicant No. 2 could not be treated as proper so as to arm the Court to proceed ex parte in default of appearance on behalf of applicant No. 2, In the sequel, I would also like to observe that even assuming that the applicant No. 1 was served with the summons as Partner of the firm (applicant No. 2), still the conclusion that the Court below could not proceed ex parte against the applicant No. 2 is unaffected for the reason presently indicated.

18. The applicant No. 1 denied having any concern with the firm which includes a denial of his being a partner as well, or his having management or control of the firm. The non-applicants did not choose to contest it and have a decision of the Court; discharged the applicant No. 1 and got the suit dismissed against him. Thus, the applicant No. 1 virtually refused to enter or having entered was allowed to withdraw his appearance and in that event a fresh summons on an appropriate person was necessary. I am supported in this view by a decision of the Supreme Court in Gajendra Narain Singh v. Jorimal Prahlad Rai, (AIR 1964 SC 581). The relevant observation is set out below:--

'If the Court finds on evidence that the person served was not a partner at the material time, the suit cannot proceed, unless summons is served afresh under Rule 3. If the Court holds that he was a partner, service on him will be regarded as good service on the firm and the suit will proceed against the firm.'

19. Assuming that the applicant No. 2 is a joint Hindu family firm, it cannot be gainsaid that a suit cap be filed by virtue of Order 30 Rule 10 C. P. C against its members in their firm name but in that case also, the service of summons has to be effected on any adult member of that family or on a person in charge of the management or control of that business. The applicant No. 1 denied his concern with the firm (applicant No. 2 without seeking a determination whether applicant No. I is the member of the joint family whose business is being carried on in this firm name, he has been discharged from the suit. For the parity of reasons given in foregoing paragraph the service on applicant No. 1 for the firm (applicant No. 2) cannot be held to be proper.

20. I would now turn to the other question whether applicant No. 1 having denied his concern in any manner whatsoever with the firm (applicant No. 2) was entitled to represent and defend the firm. This firm may either be a partnership or a joint Hindu family firm, he could represent only when he admitted his capacity as a partner or a member of the joint family to which the firm belongs, as the case may be. I find support in my view from a decision of their Lordships of the Supreme Court in Gambirmal Pandiya v. J. K. Jute Mills Co. Ltd. Kanpur. (AIR1963 SC 243), the relevant portion of which is reproduced below:--

'In our judgment, the view expressed inthese later cases, is the correct one. As wehave pointed out, Order 30 of the Code permitssuits to be brought against firms. The summons may be issued against the firm oragainst persons who are alleged to bepartners individually. The suit,however, proceeds only against the firm. Anyperson who is summoned can appear, andprove that he is not a partner and neverwas; but if he raises that defence, he cannotdefend the firm. Persons who admit thatthey are partners may defend the firm, takeas many pleas as they like but not enterupon issues between themselves.'

21. Consequent to the aforesaid discussion, the impugned order as well as the earlier order of the Court below dated 4-12-1974 whereby it ordered to proceed ex parte against the applicant No. 2 are set aside. The trial Court should order the plaintiff-non-applicant to furnish further and better particulars as to the constitution of the firm (applicant No. 2) according to him i. e. whether it has been sued as a partnership firm or a joint Hindu family firm and order for the service of summons in the manner provided in law and then proceed to decide the suit according to law.

22. In the result, this revision petition is allowed as indicated above. I make no order as to costs in view of the circumstances of this case.


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