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2002 DIGILAW 1443 (AP)

Pasham Bala Rajaiah Sons v. Ahmed moinuddin

2002-12-11

DUBAGUNTA SUBRAHMANYAM

body2002
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) ORDER :this revision petition is filed against the order dated 19-6-2001 in IA no. 1743 of 2000 in OS No. 234 of 2000 on the file of XI Junior Civil Judge, City Civil court at Secunderabad. ( 2 ) A partnership firm by name M/s. Pasham Balarajaiah sons is the revision petitioner in this CRP. It is filed by one of the partners of the firm by name P. Ramakrishna. The respondent-plaintiff filed a suit in O. S. No. 234 of 2000 seeking eviction of the partnership firm from the suit premises. The partnership firm was sued represented by one of its partners namely P. Ramakrishna. The Trial Court fixed 28-6-2000 as the date for the presence of the defendant before the Court and accordingly issued summons. The Process server of the Court served the notice on p. Prabhakar on 5-6-2000. The said P. Prabhakar endorsed on the summons that he received summons on behalf of his brother. P. Ramakrishna is the own brother of the said P. Prabhakar. This is not in dispute. On 28-6-2000, the Court treating the summons as duly served on the firm, as the firm was called absent, set ex parte the defendant-firm and subsequently passed an ex parte decree for eviction on 20-7-2000. After obtaining the ex parte decree, the respondent-plaintiff executed the said decree. The Executing Court delivered possession of the suit property to the respondent-plaintiff on 6-11-2000. On 17-11-2000 the partnership firm filed a petition under Order 9 Rule 13 of CPC requesting the Trial Court to set aside the ex parte decree dated 20-7-2000. The firm filed another petition in IA No. 1743 of 2000 under Section 5 of the Limitation Act requesting the Trial Court to condone the delay of 89 days in filing the petition under order 9 Rule 13 of CPC to set aside the ex parte decree. The said petition which was filed under Section 5 of the Limitation act was opposed by the respondent-plaintiff. The Trial Court dismissed the said petition on merits on 19-6-2001. Aggrieved by the said order, the partnership firm filed the present revision petition. ( 3 ) THE revision petitioner did not dispute that P. Prabhakar who received the summons is the brother of P. Ramakrishna. The Trial Court dismissed the said petition on merits on 19-6-2001. Aggrieved by the said order, the partnership firm filed the present revision petition. ( 3 ) THE revision petitioner did not dispute that P. Prabhakar who received the summons is the brother of P. Ramakrishna. The learned Counsel for the revision petitioner invited the attention of this Court to the provisions contained in Order 5 Rules 12 and 15 of the Code of Civil Procedure. Those two provisions read as follows:"rule 12 service to be on defendant in person when practicable, or on his agent :- Whenever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. RULE 15 where service may be on an adult member of defendant s family :where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation : Servant is not a member of the family within the meaning of this Rule. "the learned Counsel contended seriously that P. Prabhakar cannot be treated as an agent of the partnership firm. He further contended that as partnership firm is the defendant, P. Prabhakar cannot be treated as an adult member of the family of the defendant. It is his contention that as summons were not served on the partnership firm, the ex parte decree is liable to be set aside and the revision petitioner by way of abundant precaution filed a separate application under Section 5 of the Limitation act seeking the condonation of delay in filing the petition under Order 9 Rule 13 cpc. ( 4 ) I have carefully considered the submission made on behalf of the revision petitioner. In the circumstances of the present case, for the reasons to be given hereunder, I do not find any substance in any of the contentions raised on behalf of the revision petitioner. ( 4 ) I have carefully considered the submission made on behalf of the revision petitioner. In the circumstances of the present case, for the reasons to be given hereunder, I do not find any substance in any of the contentions raised on behalf of the revision petitioner. ( 5 ) IN the counter filed by the respondent-plaintiff in IA No. 1743 of 2000 a plea was taken to the effect that P. Prabhakar who received the suit summons is also one of the partners of the revision petitioner-partnership firm. This fact is not disputed by the defendant by filing any reply affidavit before the Trial Court. The Trial court in the impugned order categorically mentioned that nowhere in the affidavit filed by P. Ramakrishna it is stated that the said P. Prabhakar is not the partner of petitioner firm. In the impugned order, the trial Court further held that the - said prabhakar who received the summons is not only an adult member but he is also the agent of the petitioner-firm as he is carrying on the business in the schedule premises at the time of serving of the summons on him. It further held that as the summons are duly served on the petitioner, as the petitioner did not make his appearance, it was set ex parts and an exparte decree was passed on 20-7-2000. I have perused the grounds taken in the present revision petition. Nowhere in the grounds it is denied that Prabhakar, who received the summons, is the partner of the partnership firm. It is a well known principle of law that a partnership firm can be sued represented by all the partners or by any of the partners. Similarly, any notices meant to be served on the partnership firm can be served on any of the partners of the firm. There is no law saying that notice meant for partnership firm is to be served on a particular partner alone. Therefore, in the present case as the summons meant for the revision petitioner-partnership firm, in fact was received by one of the partners of the firm only, the service of summons on the said Prabhakar is sufficient and valid service of summons on the partnership firm. It is to be stated that P. Ramakrishna is not sued in his individual capacity. It is to be stated that P. Ramakrishna is not sued in his individual capacity. The partnership firm alone is sued and it is sued as represented by P. Ramakrishna. Therefore, even if P. Prabhakar cannot be treated as one of the adult members of the defendant-concern still as the notice was served on him who happens to be one of the partners of the firm, the said service of notice is binding not only on P. Ramakrishna but also on the other partners of the firm. ( 6 ) THE learned Counsel for the revision petitioner contended that P. Prabhakar did not endorse on the summons that he is receiving the summons as a partner of the firm and he endorsed that he received the summons as brother of p. Ramakrishna. That circumstance is not a significant circumstance. His endorsement does not change his status or position namely that he is one of the partners of the firm. Perhaps as the partnership firm was sued represented by P. Ramakrishna, he endorsed on the summons that he is receiving the summons as brother of Ramakrishna. That endorsement would not alter the consequences which have to follow in accordance with law. As the summons were duly served on one of the partners of the firm, under no circumstances it can be held that there is any irregularly or illegality in service of summons on the defendant. Except the said ground no other ground was mentioned for condoning the delay in filing the petition under Order 9 Rule 13 CPC. As the summons were duly served on one of the partners and as no other explanation is given for the absence of the defendant on the date of exparte decree, in my considered opinion the impugned order is not liable to be set aside. I do not find any merits in the revision petition. In the result, the Revision Petition is dismissed. No costs.