1. This is an application by the defendant firm, Haribux Shewnathrai to set aside an ex parte decree passed against the firm on 26th August 1943. It appears that there were three suits instituted against this defendant firm, this suit No. 967 of 1943; suit No. 968 of 1943 in which the Naskarpara Jute Mills Go. Ltd. were the plaintiffs; and suit No. 1056 of 1913 in which the Bengal Jute Mill Co. Ltd, were the plaintiffs. All these suits were instituted in July 1943. The writ of summons in this suit and in suit No. 968 were issued on 16th July and lodged with the Sheriff on 17th and the writ of summons in suit No. 1056 was issued on 30th July and lodged with the Sheriff for service on 81st July.
2. The Sheriff's officer in suit No. 1056 and suit No. 968 was Pashupati Sircar. In suit No. 967, the present suit, the Sheriff's officer was Hrishikesh Das. In each case the service was sought to be effected at the place where the defendant firm carries on business, namely, at 26/4, Armenian Street. In the present case the plaintiffs obtained leave to serve the writ of summons on Radha Kissen as a partner of the defendant firm and that leave was granted. Admittedly, Radha Kissen was in Calcutta at all material times, though he is said to be now in ill-health and in a sanitorium outside Calcutta. It is admitted, however, that he was in Calcutta throughout August and September and part of October 1943. The dates on which service was sought to be effected were 2nd, 3rd and 4th August. The Sheriff's officer Hrishikesh Das went with Surendra Chandra Bhowmic, one of the plaintiff's employees, to 26/4, Armenian Street, and in the affidavit of service they state that they went there on three occasions, namely, at 5 o'clock on 2nd, at 4 o'clock on 3rd and at noon on 4th August, and that failing to find Radha Kissen or any person authorised on his behalf on whom proper service could be made after due diligence and as there was no likelihood of Radha Kissen being found there within a reasonable time, on 4th August at noon, they served the writ of summons by affixing a copy on the outer door of the premises No. 26/4, Armenian Street. In the other two cases the Sheriff's officer Pashupati Sircar also went with the plaintiff's employee to serve the writ of summons at the same premises on 2nd, 3rd and 4th August. Pashupati Sircar in his affidavit says that the premises were locked from outside and there appeared to be nobody inside the room occupied by the defendant firm and on the outer door of which there appeared the defendant firm's name plate. On 3rd August at six in the evening a durwan on the premises informed Pashupati Sircar that Radha Kissen was the only person who occupied the room, he usually went out early in the morning and came back at 2 o'clock. Accordingly Pashupati Sircar went back to the premises on 4th August but could find nobody, the room was still locked up and therefore he affixed a copy of the writ of summons on the outer door. I mention these facts because it appears from them that Radha Kissen was present in Calcutta and that he was on the material dates attending the office at which service was sought to be effected.
3. Radha Kissen has not sworn any affidavit, but Nathmull, the Munib Gomasta, who says that he is looking after the business of the defendant firm, has verified the petition in which he states that on 26th August he and a partner went to their attorney to arrange for the defence in suit No. 1056. By a curious coincidence it happened that on that particular date the other two suits, suit No. 968 and the suit in which this present application is being made were appearing in the cause list among the undefended suits for disposal. The defendant firm's attorney Mr. Poddar is said to have made enquiries and found that the present suit and suit No. 968 had already been decreed, and he passed on this information to the defendant firm. The defendant firm states that it is in this manner that they first came to know that this suit the decree in which they are now seeking to set aside, was instituted against them. Apparently no steps were taken until 8th November 1943 when the present notice of motion was taken out.
4. On behalf of the applicant it has been argued that inasmuch as leave had been obtained to serve Radha Kissen as a partner in the defendant firm, the service of the summons must be strictly in accordance with the provisions of Order 5, Civil P.C. Order 5 refers to the service of summons upon an individual defendant. Rule 17 of that Order provides that where the defendant refuses to sign or where he is absent from his residence at the time when service is sought to be effected on him thereat, and there is no likelihood of his being found thereat within a reasonable time, and there is no agent or other person upon whom service can be effected, the serving officer may effect service by affixing a copy of the summons on the outer door. The learned Counsel on behalf of the applicant stressed the necessity of serving the defendant at his place of residence and he contends that no attempt was made in the present instance to serve Radha Kissen at his place of residence. The provisions of Order 5, Rule 17 certainly contemplate that the defendant should be served at his residence, but the contention that any partner in a defendant firm must also be served at his residence seems to me to lose sight of the provisions of Order 30 which provide specifically for the manner in which service is to be effected upon a firm. Order 30, Rule 3 provides that where persons are sued as partners in the name of their firm, the summons will be served, either upon any one or more of the partners, or at the principal place at which the partnership business is carried on within British India, upon any person having at the time of service the control or management of the partnership business there as the Court may direct, and such service shall be deemed good service upon the firm. It is argued that the plaintiff has an option either to serve one of the partners or to serve somebody who is in control or management of the partnership business. If he elects to serve one of the partners he must serve that partner in the manner provided by Order 5 of the Code. If, however, he serves a person who is in control of the partnership business, he may then either serve the summonses on the person personally or by affixation at the principal place of business.
5. In my view Order 30, Rule 3 does not contemplate that a person who is served as a partner must be served at his residence. The whole scope of Order 30 appears to me to be intended to enable the plaintiff to serve a firm and undoubtedly the proper place at which the firm should be served is the place at which the firm carries on business and which in effect is the place at which the firm resides. The partners are merely some of the units which comprise the firm and the plaintiff is enabled to seek out one of those units and ask the Court's direction that one of those units may be served for the purpose of bringing the suit to the notice of firm. Rule 3, order 30 enables service to be effected at the principal place at which the partnership business is carried on and enables it to be effected upon any person having control or management of the partnership business. The words 'any person' seem to me to include partners, and there does not seem to be any reason to exclude a partner from the category of persons who have control or management of the partnership business. To put upon the plaintiff the burden of finding out where each partner happens to reside was, in my opinion, never the intention of the Legislature nor would it, in my view, be reasonable to expect such action to be taken. The object of Order 30 was to afford facilities to the plaintiff when serving a firm. To hold as I am asked to do by the learned Counsel for the applicant would merely have the effect of increasing the difficulties of a plaintiff when effecting service on a firm.
6. The service in this case was effected after an attempt had been made to find Radha Kissen. There is evidence that Radha Kissen was in Calcutta, there is evidence that he was attending his place of business though not apparently at the particular time at which the serving officer attempted to find him. In the circumstances, it would be difficult to hold, were it relevant, that the defendant firm did not have knowledge of the action which had been instituted by the present plaintiff. The only matter, however, with which I am concerned on this application is whether the service was or was not properly effected. In my opinion the service was effected as contemplated by the Code and this application must be dismissed with costs.