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Rameshwar Dayal Vs. Devi Sahai Prabhu Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 135 of 1976
Judge
Reported in17(1980)DLT33
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 13 - Order 30, Rule 1
AppellantRameshwar Dayal
RespondentDevi Sahai Prabhu Lal and ors.
Advocates: S.P.Mahajan and; A.B. Dayal, Advs
Cases ReferredIn Gambhir Mal Pandiva v. J.k. Jute Mills Co. Ltd. Kanpur and
Excerpt:
.....sent fresh notices to kedar nath and ram sahai malinforming them that the case had been adjourned to 30th april, 1967, and he would proceed ex-parte, if they fail to appear. the arbitrator, also, sent notices to rameshwar dayal and hira lal informing them, that, as they had failed to appear, it had been ordered that the matter proceed exparte against them. mahajan, learned counsel for the appellant contends that service on the karta of a joint hindu family firm would be good service but service on a member of such a firm would not be effective or valid service on the firm. it was urged that the failure to obtain detailed directions from the court was not only an irregularity but went to the root of the matter. order ix rule 13 of the code of civil procedure clearly indicates that it is..........1.shri ram sahai son of shri beej raj, c/o messrs. puran mal mahesh kumar, nai mandi, naranul. 2. shri rameshwar dayal son of shri bhagirath mal, c/o messrs. sunder lal shankar lal, nai mandi, narnaul. 3. shri hira lal son of shri bhagirath mal, c/o messrs. hira lal madan lal, nai mandi, narnaul. 4. shri meena ram son of shri beej raj, 97-d, kamla nagar, delhi. 5. shri kedar nath son of shri kanhai ram. s/o messrs. bhag chand hemant kumar, p. 0. konch, district jalon, u.p. 6. shri mohan lal son of shri devi sahai, c/o messrs. devi sahai prabhu lal, 4/22, roop nagar, delhi.(5) the arbitrator issued notices to the above mentioned six persona for appearances on 2nd april, 1967. on the said date m/s. devi sahai lal filed a statement of claim for rs. 22,845.60 with interest from 28th april,.....
Judgment:

Leila Seth, J.

(1) This appeal is directed against the order of Shri Mohinder Pal, Sub-Judge 1st Class, Delhi, dated 27th February 1976.

(2) The case brings within its compass two families. The family of Beej Raj and the family of Devi Sahai. Ram Sahai Mal and Meena Ram were sons of Beej Raj. There was another son Bhagirath Mal who died earlier. Bhagirath Mal's sons are Rameshwar Dayal and Hira Lal. During the pendency of the proceedings, the elder brother Ram Sahai Mal also died and his heirs and legal representatives were made parties. In the other family, Mohan Lal and Banwari Lal are the sons of Devi Sahai. Meena Ram is the father-in-law of Banwari Lal.

(3) A matter pertaining to the firm of M/s. Ram Sahai Mal Rameshwar Dayal, Narnaul, Haryana and the firm of M/s. Devi Sahai Prabhu Lal, Katra Tambacco, Delhi was referred to the arbitration of one Shri Kulwant Rai Gupta, Advocate. The arbitration agreement was dated 24th March, 1967. On behalf of M/s. Ram Sahai Mal Rameshwar Dayal of Narnaul, it was executed through its proprietor and Karta, Meena Ram son of Shri Beej Raj resident of Nai Mandi, Narnaul now at Delhi. On behalf of M/s. Devi Sahai Prabhu Lal, it was executed through its partner Shri Mohan Lal son of Shri Devi Sahai of 4/22, Roop Nagar, Delhi. The said deed was signed by Meena Ram and Mohan Lal only. They mutually appointed Shri Kulwant Rai Gupta as the sole arbirator to settle the disputes mentioned therein.

(4) On 25th March, 1967, Bal Mukund Gupta, Advocate wrote to Shri Kulwant Rai Gupta informing him that his clients M/s. Devi Sahai Prabhu Lal of Katra Tombacco, Delhi were owed a sum of Rs. 22,845.60 from M/s. Ram Sahai Mal Rameshwar Dayal of Narnaul. He requested the sole arbitrator to enter reference and issue notices to the parties concerned. The names and addresses of the persons to whom the notices were to be addressed were given as :

1.Shri Ram Sahai son of Shri Beej Raj, C/o Messrs. Puran Mal Mahesh Kumar, Nai Mandi, Naranul. 2. Shri Rameshwar Dayal son of Shri Bhagirath Mal, C/o Messrs. Sunder Lal Shankar Lal, Nai Mandi, Narnaul. 3. Shri Hira Lal son of Shri Bhagirath Mal, C/o Messrs. Hira Lal Madan Lal, Nai Mandi, Narnaul. 4. Shri Meena Ram son of Shri Beej Raj, 97-D, Kamla Nagar, Delhi. 5. Shri Kedar Nath son of Shri Kanhai Ram. S/o Messrs. Bhag Chand Hemant Kumar, P. 0. Konch, District Jalon, U.P. 6. Shri Mohan Lal son of Shri Devi Sahai, C/o Messrs. Devi Sahai Prabhu Lal, 4/22, Roop Nagar, Delhi.

(5) The Arbitrator issued notices to the above mentioned six persona for appearances on 2nd April, 1967. On the said date M/s. Devi Sahai Lal filed a statement of claim for Rs. 22,845.60 with interest from 28th April, 1966 till the date of payment. As Rameshwar Dayal, Hira Lal, Ram Sahai Mal and Kedar Nath did not appear on 2nd April, 1967, fresh notices were issued on 3rd April, 1967.

(6) By a letter dated 13th April, 1967, Amar Nath Gupta, Advocate on behalf of Hira Lal, questioned the authority of the Arbitrator to issue a notice to him. He asserted that he had no concern with the alleged arbitra- corporation between M/s. Ram Sahai Mal Rameshwar Dayal and M/s. Devi Sahai Prabhu Lal. He also denied the existence of the alleged firms. He categori- cally stated that he had never appointed Shri Kulwant Rai Gupta, Advocate as an arbitrator in any matter whatever and as such the said arbitrator had no right in law to assume jurisdiction in respect of him by issuing notices. A similar letter dated 15th April, 1967, was addressed to the arbitrator by Rameshwar Dayal through his advocate. He also prayed for a stay of the proceedings and time to inspect the record.

(7) On 16th April, 1967, Meena Ram filed a reply on behalf of M/s. Ram Sahai Mal Rameshwar Dayal. It is not indicated in the said reply whether he was filing ii as member, partner, Karta or proprietor of the firm. In the said reply he admitted the liability to pay the principal amount but submitted that the interest claimed wasexhorbitant. He stated therein, 'We are not in a position to pay the whole of the claim of the claimant, but are prepared to pay if the claimant waives its right to claim interest.' On the said date the arbitrator sent fresh notices to Kedar Nath and Ram Sahai Malinforming them that the case had been adjourned to 30th April, 1967, and he would proceed ex-parte, if they fail to appear. The arbitrator, also, sent notices to Rameshwar Dayal and Hira Lal informing them, that, as they had failed to appear, it had been ordered that the matter proceed exparte against them. The case had been fixed for 30th April, 1967 and if they so desire they could join the proceedings at the adjourned hearing.

(8) Hira Lal through his advocate wrote another letter dated 22nd April, 1967 to the arbitrator. He reiterated his earlier stand and asked the arbitrator to desist from taking any proceedings and illegally assuming jurisdiction.

(9) The arbitrator's order sheet dated 2nd April, 1967, records the presence only of Shri Bal Mukund Gupta, Advocate for the claimant firm, M/s. Devi Sahai Prabhu Lal and Shri Meena Ram one of the members of the joint Hindu family firm of M/s. Ram Sahai Mal Rameshwar Dayal. On 16th April, 1967, a similar preseat is recorded, Meena Ram filed the reply, as noticed above. The claimant filed ten original documents bearing the signatures of Meena Ram. Meena Ram was asked to admit or deny these documents and the case was adjourned to 30th April, 1967.

(10) On the next date of hearing i e. 30th April, 1967, Bal Mukund Gupta appeared for M/s. Devi Sahai Prabhulal with Mohan Lal of the claimant firm. No one else was present. It was, thereforee, ordered that the matter be proceed with ex-parte even against Meena Ram. Mohan Lal's evidence was recorded. He deposed that he was a partner of the registered firm of M/s. Devi Sahai Prabhu Lal. The business of the firm of M/s. Ram Sahai Mal Rameshwar Dayal had been carried on by Meena Ram and Ram Sahai Mal at Konch. The firm owed money and, the liability of the said firm was the liability of the joint Hindu family consisting of Meena Ram, Ram Sahai Mal, Rameshwar Dayal, Hira Lal and Kedar Nath. Meena Ram as a partner had a acknowledged liability. All the documents relied on were signed by Meena Ram. The evidence of the claimant was closed and proceedings concluded.

(11) An award was made on 22nd May, 1967. The arbitrator held that the claimant firm of M/s. Devi Sahai Prabhu Lal was entitled to recover a sum of Rs, 22,845.60 from the respondent firm M/s. Ram Sahai Mal Rameshwar Dayal. It was ordered that the parties conncerned be duly intimated by registered post.

(12) On 4th June, 1967, a copy of the award signed and published on 22nd May, 1967, was sent to M/s. Devi Sahai Prabhu Lal through Mohan Lal, partner, 4/22, Roop Nagar, Delhi and to M/s. Ram Sahai Mal Rameshwar Dayal through Meena Ram, Karta, 97-D, Kamla Nagar Delhi.

(13) An application under section 14 of the Arbitration Act was made in the Court of the Senior Sub-Judge, Delhi. The said application was numbered as Civil Suit No. 222 of 1967. On the claimants request, the Arbitrator filed the award and it was prayed that notices be issued to the parties concerned. On 27th July 1967, the Sub-Judge 1st Class, Delhi registered the case and directed notices of the filing of the award be given to the parties according to law. On 31st July 1967, notice was issued to M/s. Ram Sahai Mal Rameshwar Dayal, Narnaul (Haryana), through Meena Ram, Karta, 97-D Kamla Nagar, Delhi to show-cause on 18th August 1967.

(14) On 18th August 1967, it was ordered, that in view of the submissions, of the advocate for the claimant and the advocate for Meena Ram as also his own statement as Karta/Manager that the award was acceptable, it was made a rule of the court and a decree for recovery of Rs. 22,845.61) was issued.

(15) It is averred by the appellant that thereafter M/s. Devi Sahai Prabhu Lal got the decree transferred to the court of the Sub-Judge, Narnaul (Haryana) for execution. By an application dated 3rd October, 1967, they prayed for attachment of the properties of Rameshwar Dayal and Ram Sahai Mal. Attachment was effected on the property of Rameshwar Dayal on 6th December, 6%.

(16) An application dated 22nd December 1967, under order Ix rule 13 and 151 of the Code of Civil Procedure was moved on 27th December 1967, in the court of Shri Jaspal Singh, Sub-Judge, Delhi. It was headed :

'DEVISahai Prabhu Dayal :-Plaintiffs v. Shri Ram Sahai Mal Rameshwar Dayal-Defendants. The defendants submit as under :-'

The application was signed by Shri Suraj Prakash Mahajan, Advocate for the petitioners. It did not indicate the names of the petitioners nor in what capacity they were filing the application not whether it was on behalf of the defendant firm. The Vakalatnama in favor of Shri Mahajan was, however, signed by Hira Lal, Rameshwar Dayal and Ram Sahai Mal.

(17) It was averred in the said application that a decree making the award a rule of the court had been passed on 18th August 1967. The defendants had never been served with any summons or notice either in respect of the said proceedings of the filing of the award. Further,Meena Ram had no locus standi to represent the petitioning defendants. The process had been suppressed or concealed, in order to secure an ex-parte decision. The defendants had neither made any reference to arbitration nor were party to any agreement of reference or arbitration proceedings. A fraudulent award had been procured by suppression of process and made a rule of the court. They came to know of the existence of the decree and the proceedings on 6/11th December, 1967 and claimed that there was sufficient cause for setting aside the ex-parte decree. The affidavit annexed. to the said application is by Ram Sahai Mal. He states that he learnt of the existence of the decree and the proceedings resulting in such a decree on 11th December, 1967, on inspection of the file of Narnaul Transferee Court of Sub-Judge, Narnaul.

(18) A reply was filed by M/s. Devi Sahai Prabhu Lal in which they raised, inter alia, some preliminary objections. Four issues were framed as follows:

1. Whether the application is not maintainable and competent as alleged in paras I to 3 in the preliminary objections of the Decree holder/Respondents O.P.P. 2. Whether the application is within time 0 P.P. 3. Whether the decree is liable to be set-aside on the grounds as alleged in the petition O.P.P. 4. Relief.

(19) One of the grounds on which the competency of the petition had been challenged was that the application was not signed by a duly authorised person. The learned Sub-Judge held that the petition under Order Ix rule 13 of the Code of Civil Procedure, dated 22nd December, 1967, which did not contain the names of the petitioners, but was signed by S.P. Mahajan, Advocate for the petitioners, was moved on 22nd December 1967. On the said date the Vakalatnama of Ram Sahai Mal, Rameshwar Dayal and Hira Lal had not been accepted by Shri S.P. Mahajan. It was so accepted on 27th December, 1967. As such, the petition had not been signed by a duly authorised person and was incompetent.

(20) It was pointed out to me from the record that though the application is dated 22nd December, 1967, it was moved on 27th December 1967, on which date Shri S.P. Mahajan was duly authorised to file it. la fact, this position, has not been seriously controverter by the respondents. It appears that the learned Sub-Judge over-looked or incorrectly appreciated the fact as apparent from the record. I, thereforee, hold the application/ petition was signed by a duly authorized person.

(21) One of the other preliminary objections, that the provisions of order Ix rule 13 of the Code of Civil Procedure do not apply to a decree passed on an award under the Arbitration Act, was not seriously urged.

(22) The third objection is that the decree was not ex-parte as the firm was served and Meena Ram had always appeared for the judgment debtor firm. This is linked with the main point in issue and I will deal with it later.

(23) Issue No. 2 pertains to the timely filing of the application. According to the applicants it was moved within thirty days of knowledge. The Sub-Judge held that there was no reason to disbelieve the petitioners. He, thereforee, held the petition to be within time. Nothing has been brought to my notice calling for interference with this finding.

(24) The question, thereforee, that is posed, is, whether service on Meena Ram was effective service on the firm M/s. Ram Sahai Mal Rameshwar Dayal and, if not, who is entitled to get the ex-parte decree set aside.

(25) It is pertinent to note that the original arbitration agreement dated 24th March, 1967, showed Meena Ram as proprietor and Karta: whereas in the proceedings he has been shown as one of the members of the joint Hindu family firm. In the award he is shown as the Karta of the said firm. The expressions 'Proprietor' and 'Karta' are contradictory. A Karta is the manager of the joint Hindu family and is usually the eldest male member of the branch. The eldest brother is admittedly Ram Sahai Mal who could be presumed to be the Karta. But, if Meena Ram is the proprietor of the firm then obviously it is not a joint Hindu family firm. The position is rather anomalous and a certified copy of Meena Ram's deposition recorded in 1958 before the Additional Subordinate Judge Patna, in money suit No. 4-5 of 1954-55, Shri Bishwa Nath Prasad versus Firm Ram Sahai Mal Rameshwar Dayal and others has been filed. He has stated therein that he separated from his brothers when he came to Konch and started business in the name and style of M/s. Ram Sahai Mal Rameshwar Dayal. He and Kedar Nath, who is not a member of his family are the proprietors of the said firm.

(26) Mr. Mahajan, learned counsel for the appellant contends that service on the Karta of a joint Hindu family firm would be good service but service on a member of such a firm would not be effective or valid service on the firm. He submits, that this must necessarily follow, in view of the peculiar features of a joint Hindu family firm.

(27) Mr. Adarsh Dayal. learned counsel on behalf of the respondents, urges that in view of Order Xxx of the Code of Civil Procedure and the ex- planation added to rule I by the Punjab High Court Rules, ajoint Hindu family firm is placed on the same footing as a partnership firm. Since there is no dispute that the Explanationn added to Order Xxx of the Code of Civil Procedure by the Punjab High Court would also be applicable to this Court, he submits that service on any member of the joint Hindu family will be valid service on the joint Hindu family firm. Service was admittedly effected on Meena Ram on 9th August, 1967 and as such the decree is not ex-parte.

(28) If the firm of M/s. Ram Sahai Mal Rameshwar Dayal is a partnership or a proprietorship firm of Meena Ram and Kedar Nath, then service has been duly effected, lf.ihowever, it is a joint Hindu family firm of which Meena Ram is the Kartit then, too, admittedly has been correctly effected. If, it is ajoint Hinde family firm of Meena Ram, Rameshwar Dayal, Hira Lal and Ram Sahai Mill, then service having been effected on a member of the firm would normally be effective service on the firm in view of Order Xxx of the Code of Civil Procedure and the Explanationn thereto added by the Punjab High Court which is as follows : 'Explanation : This rule applies to a Joint Hindu Family trading partnership (Chief Court Notification No. 2212 dated 12th May, 1^09). See: Punjab National Bank Lid. Arnritsar v. Mis. Raj Mal Pahar Chand and ethers, and Mfs. Ghaki Mal Hukam Chand and others v. Punjab National Bank Ltd., .

(29) A great deal of argument had been addressed on the aspect 'whether it is necessary to obtain directions from the court under rule 3 of Order Xxx of the Code of Civil Procedure. It was urged that if directions had been obtained the court could have enquired whether Meena Ram was the senior most member and Karta of Hindu undivided family firm, M/s. Ram Sahai Mal Rameshwar Dayal. The solitary object of the rule being to avoid decit and collusion and to see that necessary and proper parties are before the court. It was urged that the failure to obtain detailed directions from the court was not only an irregularity but went to the root of the matter. I need not decide this question in the view that I am going to take.

(30) The decree has been passed against M/s. Ram Sahai Mal Ramesh- war Dayal. The appellant has stated that he has nothi-ng to do with the firm. Order Ix rule 13 of the Code of Civil Procedure clearly indicates that it is only the defendant who can apply under this piovision for setting aside the decree as against him. A person who is not a party to the suit though he maybe interested is not entitled to apply under this rule. It is clear from the rule itself. The application made under Order Ix rule 13, Code of Civil Procedure, by Ram Sahai Mal, Rameshwar Dayal and Hira Lal does not purport to be of the judgment debtor firm, M/s. Ram Sahai Mal Rameshwar Dayal. Nor is there any averment that they are moving the application as the members or Karta of the firm. The appeal in this court has not been filed by the said firm nor on its behalf, Ramesl'war Dayal son ofBhagirafh Mal, alone, has filed the appeal and the firm M/s. Ram Sahai Mal Rameshwar Dayal is shown as respondent No. 6. It has been served through Shri Pooran Mal, respondent No. 2, (adopted son of Ram Sahai Mal). Meena Ram is, strangely, not made a party to the proceedings. It would, thereforee, appear that both the application and the appeal are not by the defendant-firm.

(31) It is well settled that only a partner/member/manager/Karta or proprietor can defend a suit against a firm or has locus standi to ask for a decree to be set aside. A person cannot apply under Order Ix rule 13 of the Code of Civil Procedure, for setting asiae a decree if he claims that he has nothing to do with the partnership of firm. The appellant having denied his concern in any manner what soever with the firm is not entitled to represent and defend the firm. A person can represent the firm only when he admits his capacity either as partner of a firm or as a member of the joint family firm. Neither the appellant, nor the applicants in the court below, claim that they are either members or partners of manager, Karta or proprietor of the defendant firm.

(32) In Gambhir Mal Pandiva v. J.k. Jute Mills Co. Ltd. Kanpur and another, : [1963]2SCR190 , it has been observed that under Order Xxx of the Code of Civil Procedure, it is permissible to bring a suit against a firm. The summons may be issued against the firm or against persons who are alleged to be partners, individually. The suit, however, proceeds only against the firm. A psrson sum-noned may appear and prove that he is not a partner and never was, but if he raises that defense, he cannot defend the firm, it is only persons who admit that they a.e partners that may defend the firm.

(33) In this case the decree is against the firm of M/s. Ram Sahai Mal Rameshwar Dayal, through its Karta, Meena Ram has been servsd and is not challenging the decree. In fact he has not even been made a rather peculiar. After all it is not alleged that he is not a member of the joint family.

(34) It would appear to me that an application to set aside an ex parte decree against a firm should be moved by the judgment-debtor firm. Rameshwar Dayal, the appellant has been asserting that the said firm is not a joint . family firm but a firm started by Meena Ram with Kedar Nath after Meena Ram separated from his brother. thereforee, if it is correct, that Rameshwar Dayal is not a member or partner of the firm, then he is not a party to the decree nor bound by it.

(35) The appeal, as noticed above, has not been filed by the appellant as judgment-debtor. The judgment-debtor firm is, in fact, treated as a respondent. It is, thereforee, clear that the appellant and the applicants had no locus standi to move the application under Order Ix rule 13 of the Code of Civil Procedure.

(36) The appell-int who asserts that he has no connection with the judgment-debtor firm is not entitled to move the said application. His remedy, if any, will be before the executing court.

(37) In the result'the appeal is dismissed, but in the circumstances of the case I make no order as to costs.


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