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1978 DIGILAW 896 (MP)

Gokulchand Buwana v. Bank of Baroda

1978-11-29

S.R.VYAS

body1978
Short Note : 1. Facts material for disposal of this revision application are these. Non-applicant No. 1, Bank of Baroda, instituted a suit against non-applicant No.2 M/s Shyam Textiles, a partnership firm, of which the applicants and non-applicants Nos. 3, 4 and 5 were said to be partners. Summons were issued to all the defendants which were served on the partnership firm and its partners Smt. Tarabai and Smt. Gyarsibai. Summons issued to the applicants and non-applicant Smt. Parmeshwaribai were returned unserved as, according to the service report, they were said to be residing at Bombay or at Calcutta. The plaintiff submitted at application for substituted service which was allowed and it was directed that summons on the applicants and non-applicant No, 5 Smt. Parmeshwaribai be served both by affixture on the principal place of business of the firm as also by publication in some local daily news paper published from Indore. After publication and affixture the applicants and non-applicants did not appear. The trial Court, therefore, directed the hearing of the suit exparte against the applicants and non-applicant No.5. The applicants as also the non-applicant No.5 submitted an application for permission to Appear and to be heard but the prayer for the applicants was disallowed and only non-applicant No.5 was permitted to appear. 2. The applicants challenge the correctness of the order by which the said prayer has been refused. Held: The fact that the applicants are the partners of the firm M/s Shyam Textiles, whose principal place of business was as shown in the plaint. When it was reported that these two applicants are not found at the aforesaid address and that they were residing either at Calcutta or at Bombay the plaintiff had no option but to pray for substituted service as it was not alleged that the plaintiff knew about the addresses of these two applicants other than the principal place of the business of the firm. Apart from the objections raised by the firm about the service of the summons by publication it is clear that service by affixture, as contemplated by rule 20, Order 5 CPC was also made. In these circumstances the applicants cannot have any grievance about the propriety of the service of summons in the aforesaid manner. 3. The trial of the suit has not proceeded. In these circumstances the applicants cannot have any grievance about the propriety of the service of summons in the aforesaid manner. 3. The trial of the suit has not proceeded. Written-statements by Gyarsibai and Tarabai as also for the partnership firm, defendant No. 2 in the trial Court have not been filed. Smt. Parmeshwaribai has also been permitted to file the written statement. Learned counsel for the applicants stated before this Court that the applicants are prepared to receive summons of the suit and if permitted to appear then they• will file their written statements. Having considered all the facts and circumstances of the case it would be proper that applicants may be permitted to appear in answer to the claim made against them in the trial Court. It is accordingly directed that applicants Gokulchand and Ramgopal, who are defendants Nos. 5 and 6 in the trial Court, should either appear personally or through their counsel in the trial Court on December 4, 1978, and receive the summons of the suit. The order for proceedings exparte against them shall stand set aside provided that they pay Rs.150 as costs to the plaintiff. Revision allowed.