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Keen Robinson and Co., Ltd. Vs. Lily Biscuit Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal541
AppellantKeen Robinson and Co., Ltd.
RespondentLily Biscuit Co.
Cases ReferredInternational Continental Caoutchouc Compagnie v. Mehta
Excerpt:
- .....all reason and common sense to hold that, where service has in fact been made upon a partner of a firm, the service is bad because the directions of the court under order 30, rule 3, have not been first obtained. whether where service has been effected at the principal place at which the partnership business is carried on within british india upon some person having at the time of service the control or management 'of the partnership business there without the directions of the court having been obtained, {such service should be deemed good service is not a matter which i need consider, nor do i express any opinion with regard to it. conceivably the words 'as the court may direct' have been inserted for the purpose of enabling parties who are unable to effect service upon a partner to.....
Judgment:

Buckland, J.

1. This is an application made on behalf of the Lily Biscuit Company, under which firm name two persons, called Pratapchandra Set and his brother Binaykrishna Sat, carry on business, for an order that an ex parte decree, made on 18th May 1931, be set aside. The grounds of the application are that there was no proper service of the writ of summons as required by Order 30, R.3,Civil P.C. (His Lordship on considering evidence found that the summons had been served on a partner of the defendant firm.) A further question arises for decision, for it is contended by reference to Order 30, Rule 3, Civil P. C, that directions of the Court should have been obtained, and that no directions having been obtained, which is the fact, the service is not a proper service within the meaning of the section: The rule says:

Where persona are sued as partners in the name of their firm, the summons shall be served either (a) upon any one or more of the partners, or (b) 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 so sued, whether all or any of the partners are within or without British India.

2. It is contended by Mr. Bose, on behalf of the defendant firm, that before service the plaintiffs should have obtained the directions of the Court whether the summons should be served upon a partner or in the manner prescribed by Sub-section (b) and that if no such directions have been obtained the service is not in accordance with law, because it is only the service so directed and no other which can be deemed good service. I cannot take the view that the words 'such service' in the last part of the section only refer to service for which the Court has given a direction. I apprehend that it means service either in the mode prescribed by Sub-section (a) or in the mode prescribed by Sub-section (b), shall be deemed good service though power is reserved to the Court to direct which mode of service shall be followed. But this does not exclude the question whether or not the directions of the Court must first be obtained. I have been referred to my judgment in International Continental Caoutchouc Compagnie v. Mehta & Co. : AIR1927Cal758 in which I had occasion to consider the practice under Order 30, Civil P.C. I then observed that it had been decided that under Order 30, Rule 3, the directions of the Court must be obtained as to the method of service to be followed. Though I am confident that I should not have made, so positive a statement without authority, no authority has been cited to-day, but I am informed that there is an unreported judgment of Pugh, J., on the point. The point however was in no way essential to the decision of the matter then under consideration and my statement made on that occasion should be regarded as obiter. The English Rule, Order 48-A, Rule 3, is in substantially the same terms, but comparison is valueless for the words 'as the Court may direct' do not find a place in it and the need for them is avoided by the direct requirements of the rule.

3. The point of substance is whether, when in fact a partner has been served but no directions of the Court under Order 30, Section 3, have been first obtained, such service may be deemed good service. Reference has been made to Rule 5, but that does not affect the matter. Actually in this case, at the time of service, ' a notice under Rule 5 was also served, but this is immaterial for the reason that the rule provides that, in default of notice, the person served shall be deemed to be served as a partner. It would, in my judgment, be contrary to all reason and common sense to hold that, where service has in fact been made upon a partner of a firm, the service is bad because the directions of the Court under Order 30, Rule 3, have not been first obtained. Whether where service has been effected at the principal place at which the partnership business is carried on within British India upon some person having at the time of service the control or management 'of the partnership business there without the directions of the Court having been obtained, {such service should be deemed good service is not a matter which I need consider, nor do I express any opinion with regard to it. Conceivably the words 'as the Court may direct' have been inserted for the purpose of enabling parties who are unable to effect service upon a partner to obtain the directions of the Court to serve the writ of summons in the mode prescribed by Sub-section (b), but no such question now arises and it is unnecessary to pursue it further.

4. My attention has also been drawn to Section 99, Civil P. C, which provides that

No decree shall be reversed or substantially varied. ... on account of. . . . any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court.

6. Where there has been no service at all or where there has not been service in (the manner prescribed by law and such error or irregularity in service affects the jurisdiction of the Court in regard to the 'defendant, clearly the section will have no application. But where, as I find to be the fact here, a partner has been served, even if the directions of the Court (ought to have been obtained under Order 30, Rule 3, the omission to obtain them is not in my judgment an error, defect or irregularity affecting the jurisdiction of the Court in relation to the defendant firm.

7. It has not been suggested in argument, but it would seem that this section only applies to an appellate Court and cannot be invoked upon an application such as this to the Court which has made a decree to set it aside. Nevertheless, even if the plaintiffs are not entitled to rely upon the terms of the section as directly applicable, they are, in my opinion, entitled to refer to them as enunciating a sound principle to be followed, and, them is, to my mind, no gainsaying that if this matter is viewed in that light, this application must undoubtedly fail. The application will be dismissed with costs.


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