1973 Supreme(Bom) 50
IN THE HIGH COURT OF BOMBAY
J.R.Vimadalall, J.
Appellants: Ganeshilal Ramkumar and Anr.
Vs.
Respondent: Jhangiram Lillaram
A.F.O. 227 of 1972Decided On: 24.04.1973
Counsels:
For Appellant/Petitioner/Plaintiff: P.L. Nain, Adv.
For Respondents/Defendant: Keshavdas Dalpatrai, Adv.
Service of summons on a firm in its firm name under Order 30, Rule 1 of the Code of Civil Procedure must be accompanied by a notice under Order 30, Rule 5, headed in the title of the suit, and the envelope must be addressed to the particular person who is sought to be served, either as a partner, or a person in the control or management of the business of the firm, or in both capacities.
Headnote:
SERVICE OF SUMMONS - FIRM - ORDER 30, RULES 1, 3, 5 - ORDER 5, RULE 21-A - SERVICE BY REGISTERED POST - INTERPRETATION - SERVICE ON FIRM IN FIRM NAME - REQUIREMENTS - NOTICE TO BE GIVEN - ADDRESSING OF ENVELOPE - SERVICE ON PERSON IN CONTROL OF BUSINESS - NOTICE UNDER ORDER 30, RULE 5 - DEEMING OF ACKNOWLEDGMENT AS PRIMA FACIE PROOF OF SERVICE - COURT'S POWER TO PUT DEFENDANT ON TERMS ON SETTING ASIDE EX PARTE DECREE - ORDER 9, RULE 13.
Fact of the Case:
The plaintiff filed a suit against the first defendant firm under its firm name in accordance with Order 30, Rule 1 of the Code of Civil Procedure. The writ of summons was forwarded for service through post and the acknowledgment in respect thereof was signed by one Ghanshyamdas. The first defendant firm filed an application to set aside the ex parte decree passed against them, contending that there was no man bearing that name in their employ and that the writ of summons had therefore not been served on them. The plaintiff, in reply, stated that Ghanshyamdas was a nephew of Manoharlal, a partner of the first defendant firm, and that he was managing the business of the firm at the time of service.
Finding of the Court:
The court found that the first defendant firm had failed to make out a case for setting aside the ex parte decree. The court held that Ghanshyamdas was a nephew of Manoharlal and that he was managing the business of the firm at the time of service. The court also held that the service of summons on Ghanshyamdas was not in accordance with law as the envelope was addressed to the firm in the firm name and not to Ghanshyamdas personally, and that no notice under Order 30, Rule 5 of the Code of Civil Procedure was served along with the summons.
Issues: 1. Whether the service of summons on Ghanshyamdas was valid and in accordance with law. 2. Whether the first defendant firm was entitled to have the ex parte decree set aside.
Ratio Decidendi: 1. The court held that the service of summons on Ghanshyamdas was not valid and in accordance with law as the envelope was addressed to the firm in the firm name and not to Ghanshyamdas personally, and that no notice under Order 30, Rule 5 of the Code of Civil Procedure was served along with the summons. 2. The court held that the first defendant firm was not entitled to have the ex parte decree set aside as they had failed to make out a case for setting aside the decree.
Final Decision: The court allowed the appeal on terms. The first defendant firm was directed to deposit a sum of Rs. 10,000/- in the trial court on or before the 25th of June 1973, failing which the appeal would stand dismissed and the order of dismissal of the Notice of Motion passed by the learned Principal Judge on the 28th of February 1972 would stand confirmed. In either case, the appellants were directed to pay the respondents' costs of the appeal in the High Court, as well as of the Motion in the lower court.
JUDGMENT - 1. This is an appeal from an order of Principal Judge Rege of the Bombay City Civil Court (as he then was) dated 28th February 1972 dismissing the first defendants motion for setting aside an ex parte decree for Rupees 19,545,75, with interest, passed by him on the 6th of April 1971. The basic fact that must be borne in mind for the purpose of this appeal is that the present suit had been filed against the first defendant firm under its firm name in accordance with Order 30, Rule 1 of the Code of Civil Procedure. In support of the application to set aside the exparte decree, Manoharlal Khandelwal, a partner of the 1st defendant firm filed an affidavit in the lower Court in which the case that was made out, was that he did not know at all of the pendency of the suit against him till the 5th November 1971 after which, on taking search of the record of the said suit, he found that the writ of summons had been forwarded for service through post and the acknowledgment in respect thereof had been signed by one Ghanshvamdas on the 18th of December 1970. The 1st defendants case on the said application was that there was no man bearing that name in the employ of the 1 st defendant firm and that the writ of summons had therefore not been served on that firm and it could not defendant firm and that the writ of summons had therefore not been served on that firm and it could not defend the suit in the lower Court, In the affidavit in reply filed by the plaintiffs manager, it was stated that the said Manoharlal Khandelwal who was the senior Manoharlal Khandelwas who was the senior partner of the 1st defendant firm had a nephew named Ghanshyamdas who though he may not have been an employee of the said firm, was at the material time managing the business of the 1st defendant firm. It was further pointed out in the said affidavit that the said Mahoharlal had also another relative named Ghanshyamdas who used to carry on business at Calcutta but used to sit at the shop of the 1st defendant a Kanpur (with which the court is concerned in the present case) when ever he visited Kanpur. The plaintiff has also filed another affidavit in reply which was of one Nakhatmal Uttamchand who appears to have been a broker acting for the plaintiff and who has stated in the said affidavit that, on almost all his visits to 1st defendants shop. The said Manoharlal has filed an affidavit in rejoinder of the Motion in which he has denied that any person named Ghanshyamdas was managing the business of the 1st defendant firm, and has denied that his nephew Ghandhyamdas was looking after and managing the business of the 1st defendant firm at any time. What is significant, however, is that in the said affidavit in rejoinder, there is no denial of the fact that his nephew Ghanshyamdas had received the summons when it arrived at the shop by post or that he had signed the postal acknowledgment in respect of the same, and indeed, the most important fact is that the best person to have made that statement viz., the said Ghanshyamdas himself, has not filed any affidavit in support of 1st defendants case on the Motion. It is also significant that there is no denial of the fact the Manoharlals nephew Ghandshyamdas was in the 1st defendants shop on that particular day viz., the 18th of December 1970. There is also no denial of the fact that the said Manoharlal had two relatives named Ghanshyamdas. The question as to whether Manoharlals nephew Ganshyammdas was in management of the business of the 1st defendant firm and had received the summons and signed a postal acknowledgment in respect thereof on the 18th December 1970 was the only point argued before the learned Principal Judge at the hearing of the Motion in the lower Court, and in my opinion, the affidavits discussed by me above show that, as far as that point me above show that, as far as that point is concerned, the 1st defendants have failed to make out the case on which they relied in support of the applicati
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