The correct procedure to be followed under Order 30, Rule 6 and Rule 8 when a suit is filed against a firm by persons who deny that they are partners.

JUDGMENT

Buckland, J. - It has frequently come to my notice that there is widespread misconception as to the correct course to be followed, where a suit is filed under Order 30, Civil P.C., against a firm, by persons who have been served as partners, but who deny that they are partners. The question arises in a practical form when such persons file, as is often done, written statements on their own behalf in no way putting forward a defence to the suit, but denying that they are partners. In some instances I have found as many as three such written statements simultaneously on the record. The case eventually comes to trial with some person or other defending the suit on behalf of the firm and with other written statements on the record on behalf of the persons who have entered appearance under protest denying that they are partners. Or, as I have also found, there are written statements by such persons, but none on behalf of the firm, with the result that the hearing of the suit which is undefended is delayed, as by reason of such written statements it is treated as a defended suit, though no partner has appeared. This is not in conformity with the latter part of Order 30, Rule 8.

2. This in my opinion is entirely irregular, and accordingly I took the opportunity when this case appeared in the list for directions a week ago of adjourning it for the purpose of having the matter argued in order to make an attempt to put the procedure on a more correct basis.

3. I shall presently give such directions in this case as may be necessary. The position at present is that the plaintiff firm, under Order 30, Rule 3, obtained leave to serve and served three persons as partners, it having been decided that under that rule the directions of the Court must be obtained as to the method of service to be followed. If the method prescribed in each particular case is followed and service is so effected, then prima facie there has been service upon the firm. I apprehend that in this case, in so far as any partner who has not entered appearance under protest has been served, there has been service upon the firm.

4. On the 17th March 1927 an appearance was entered by Mr. J.M. Rakshit as attorney, on behalf of the defendant Bhagatram Vadra. That appearance was made under protest as this defendant denied that he was a partner of the firm. On the 12th April a written statement was filed on behalf of Bhagatram Vadra in which he only says that he has no knowledge of the allegations in the plaint and he denies that he is a partner. This is an instance of what I have just referred to.

5. Order 30, Rule 6 provides:

Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

6. This means that though such persons may file different written statements, they may not do so on their own behalf but must file them on behalf of the firm. Should they do that the plaintiff will be obliged to show that not one of the defences prevents a decree being made against the firm : Ellis v. Wadeson [1899] 1 Q.B. 714.

7. As regards persons who claim to be members of the firm, their position is provided for by Rule 8, which, incidentally it may be observed, only applies when service purports to have been effected under Order 30, Rule 3(a). That rule says:

Any person served with summons as a partner under Rule 3 may appear under protest, denying that he is a partner, but such appearance shall not preclude the plaintiff from otherwise serving a summons on the firm and obtaining a decree against the firm, in default of appearance where no partner has appeared.

8. The effect of that rule, as affecting the proceedings against the firm, is that where a person who has been served as a partner under Rule 3, appears under protest, the service on him as service on the firm is a nullity. The plaintiff should therefore begin again and effect service upon the firm