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Akhoy Kumar Saha and anr. Vs. Nagendra Lal Chowdhury - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.118
AppellantAkhoy Kumar Saha and anr.
RespondentNagendra Lal Chowdhury
Excerpt:
civil procedure code (act xiv of 1882), sections 74 and 80 - service of summons on manager of partnership business--'unless the court directs otherwise', meaning of--process, service of--english rules not applicable to india. - .....service on behalf of the other defendants and on his refusal to give acknowledgment, the summonses were affixed on the outer door of the defendants' firm. that being so, we are of opinion that under the provisions of section 74 of the civil procedure code service on defendant no. 4 was a good service that binds him and also the other defendants.10. in the above circumstances we dismiss the appeals with costs i.e. three gold mohurs in each of the appeals.
Judgment:

1. These are two appeals Nos. 229 and 235 of 1907 on behalf of defendants Nos. 1 and 2 and Nos. 3 and 4 respectively.

2. It appears that two applications were made under Section 108, Civil Procedure Code, to set aside an ex parte decree passed against all the defendants. These applications were rejected by the second Subordinate Judge of Chittagong on the 27th May 1907, and the present appeals are against this order.

3. The suit by the plaintiff was for recovery of Rs. 5,496-1-3 from the defendants on account of articles supplied to them by the plaintiff's firm. The defendant No. 4 is admittedly a Gudian Gomashta of the firm belonging to the other defendants.

4. It appears from the report made by the serving peon that he found defendant No. 4 on the premises where the firm belonging to the other defendants is located and that he tendered the summons and copies of the plaint, but on the 4th defendant's refusal to take them he affixed the summonses and copies of the plaint on the outer door of the defendants' business house. Defendant No. 4 appears to be Am Mukhtear of Pitambar, defendant No. 3, and evidently is the man of business of defendants Nos. 1 and 2, whether, he holds any formal power of attorney or not.

5. The Subordinate Judge has rejected the applications under Section 108, Civil Procedure Code, on the ground that the affixing of the summonses and the copies of the plaint on the outer door of the house was sufficient service under Section 80 of the Code; and also on the ground that the service was a good service under Section 74 of the Code.

6. It is contended on behalf of the appellants that the provisions of Section 80 have no application to the present case. It is admitted on behalf of the respondent that defendants Nos. 1, 2 and 3 do not reside at Chittagong and hence we are of opinion that Section 80 has no application. This section lays down that in case of refusal to sign the acknowledgment or if the serving peon cannot find the defendant and there is no agent empowered to accept service, a copy of the summons should be affixed on the outer door of the house in which the defendant ordinarily resides. It being admitted, as observed before, that the defendants Nos. 1-3 do not ordinarily reside in the house on the outer door of which the summonses were affixed, Section 80 of the Code can have no application.

7. It has been urged on behalf of the appellants that the provisions of Section 74, also do not help the respondent and it is contended that the expression. 'unless the Court directs otherwise' in the proviso to that section indicates that the Court's permission is necessary before the peon could adopt one of the methods of service mentioned therein. We do not think that this ground can prevail. The first portion of this section relates to the general law that the service of summons should be made on each defendant, and the proviso to that section relates to a case where the defendants are partners and the suit relates to a partnership transaction or to an actionable wrong in respect of which relief is claimable from the firm. The proviso provides that in such a case the service may be made in either of the two ways mentioned therein unless the Court directs otherwise. We take this to mean that if the Court does not direct otherwise the serving peon has the option of adopting any of the ways that may appear to him feasible under the circumstances. We do not think that the expression 'unless the Court directs otherwise' indicates that in such a case the serving peon must go back to the Court, and secure an order from it expressly authorising service in one of the ways mentioned in the proviso. It is admitted that defendants Nos. 1, 2 and 3 are partners and the suit related to a partnership transaction. It is also admitted that defendant No. 4 is an Am Mukhtear on behalf of defendant No. 3 and is also in charge of the management of the partnership business. This being so, service on the 4th defendant for himself and for the firm was in our opinion effectual service. Reference has also been made to the form of process server's reports in use in England, which, indicate that in that country the process server is bound to inform the manager of a firm, on whom process is served, that he is being served as manager of the firm and not individually. But the conditions of process serving in England and. India are so totally dissimilar, that we think it wholly unsafe to add to the plain provisions of the Code any further requirements based on English practice.

8. Three witnesses have been examined on behalf of appellants, namely, Mathura Mohon Saha defendant No. 4, Akhoy Kumar Saha defendant No. 1, and Baroda Kanto Dey.

9. It appears from the evidence of Mathura Mohon Saha that the plaintiff had served notices on the defendants and the notices were with respect to the suit. And Akhoy Kumar Saha defendant No. 1 says that the plaintiff's and the defendants' Guddees are only 2 or 3 cubits apart. It is not likely that after receipt of the notice of the suit the defendants had no knowledge that the suit had been instituted; at any rate defendant No. 4 who is in charge of the defendants' firm must have come to know that the suit had been instituted by the plaintiff whose Guddee was at a distance of only a few cubits from that of the defendants. It would seem from the evidence of defendant No. 4 that the notice served on him and the other defendants mentioned a period after which the suit was intended to be instituted. It further appears from his evidence that the defendants also had some money claim against the plaintiff for which they had served a notice on the latter. When there was this tension, of feelings between the two firms and when they were situated so near each other, it is absurd to suppose that a suit was instituted by the plaintiff's firm without the defendant No. 4 having any inkling of it. The respondent has examined two witnesses namely, Pran Kissen Dutt the identifier and Juramony De, the peon. From the evidence of these two men it is clear that the service on defendant No. 4 was personal and that he was also asked to accept service on behalf of the other defendants and on his refusal to give acknowledgment, the summonses were affixed on the outer door of the defendants' firm. That being so, we are of opinion that under the provisions of Section 74 of the Civil Procedure Code service on defendant No. 4 was a good service that binds him and also the other defendants.

10. In the above circumstances we dismiss the appeals with costs i.e. three gold mohurs in each of the appeals.


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