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Harjibandas Gordhandas Vs. Bhagwandas Pursram - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal390,69Ind.Cas.236
AppellantHarjibandas Gordhandas
RespondentBhagwandas Pursram
Excerpt:
civil procedure code (act v of 1908), order xxx, rule 3 - quit against dissolved firm in arm name, when lies--mode of service of summons--service by registered post manner of--calcutta high court rules, chap. vii, rule 11. - .....place at which the partnership business is carried on in british india on a person baying at the time of service the control or management of the partnership business, if the partnership business no looser exists and the firm has bean dissolved, it is obvious that the only method under rule 3 which is open, is to serve upon a partner, that is to say, upon one of the individuals whom you are charging as liable as principals, by rule 11, chapter viii of the high court rules, there is a provision for service by registered post, provided an order is obtained by a judge or master-' where the defendant resides within the jurisdiction of another court, the summons to appear and answer may, where be directed by a judge or by the registrar or mister, be addressed to the defendant at the plate.....
Judgment:

Rankin, J.

1. In this case an application is made to set aside the ex parte decree and the ground of the application is that the writ of summons was not duly served, it being farther alleged on the part of the applicant that the institution of the suit did not come to her notice or to the notice of the persons acting for her until the decree had been passed.

2. The suit is against a firm in its firm name. The allegation of the applicant is, first of all, that the business carried on under the name or style of Bhugwandas Pursram was a business of which her husband during his life-time was the sole possessor. She says that before this action was brought she herself merely carried on that business for the purpose of collecting outstandings and that in point of fact the firm, if it can be correctly called a firm, had ceased to carry on business as such some considerable time ago. What the facts are as to that in this case it is quite impossible for one to determine upon the cross-contradictions in the affidavits. According to the plaintiffs, the firm is a firm of which a good many people still living are partners.

3. The summons was sent by registered post. So far as that service goes, there is a further important point, that the applicant adduces evidence to show that it is not true that the summons was in fact delivered by the postal peon to the only address that the firm had bad.

4. Now, a suit can be brought against a firm in its firm name even if it be a dissolved firm, provided only that the liability arose at a time when the firm was in existence. When it comes to the question of service, however, in such a case as. that, it is important to remember that by the rules- Order XXX, Rule 3, the only way in which such writ can be served is by serving it either upon a partner or by serving it at the principal place at which the partnership business is carried on in British India on a person baying at the time of service the control or management of the partnership business, If the partnership business no looser exists and the firm has bean dissolved, it is obvious that the only method under Rule 3 which is open, is to serve upon a partner, that is to say, upon one of the individuals whom you are charging as liable as principals, By Rule 11, Chapter VIII of the High Court Rules, there is a provision for service by registered post, provided an order is obtained by a Judge or Master-' Where the defendant resides within the jurisdiction of another Court, the summons to appear and answer may, where be directed by a Judge or by the Registrar or Mister, be addressed to the defendant at the plate where he is residing and sent by the Sheriff to him by registered post.' It does seem to me that if that rule is going to be applied to a case where the suit is brought against a partnership firm in its firm name, it is necessary that it should be so applied as to comply, at all events, with the substance of Order XXX, Rule 3--that is to say, in such a case the registered letter should be addressed to some particular person alleged to be a partner or to have control, and it should be served by registered post upon such a person. In this case what happened was that an order was obtained to send the letter by registered post to the defendant firm at the address where it was thought to be still carrying on business. It seams to me that the applicant has satisfied me that the service in this matter has not been strictly correct, and I must, therefore, issue an order to set aside the ex parte decree. It will be for the plaintiff under the circumstances to consider very seriously, as a result of these affidavits, whether it would not be batter to amend and charge the particular persons whom they intend to make liable; bat that is a matter upon which it is not necessary for me to say anything now. What 1 propose to do is to make the costs thrown away, and the costs of this application to depend upon the ultimate result of the re-trial.


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