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2002 DIGILAW 309 (HP)

SATISH KUMAR v. SANTOSH KUMAR

2002-11-14

R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.:—The petitioners are the defendants No. 3 and 5 in the Civil Suit No. 252 of 1982/23/1 of 1984 (Lai Chand v. Firm Devi Orchards and others). They are aggrieved by the order dated 18.9.2001 of the learned District Judge, Sirmaur at Nahan, whereby their application under Section 5, Limitation Act, 1963 for condonation of delay in filing an appeal against the judgment and decree dated 30.11.1987 of the learned Sub Judge 1st Class, Rajgarh, in the aforesaid Civil Suit, was dismissed. 2. Briefly stated the facts leading to the present revision petition may be thus stated. The petitioners alongwith respondents No. 4 and 5, and one Jiya Lal (since deceased) father of petitioner No. 1 Satish Kumar, are the partners of the firm respondent No. 6 Messrs. Devi Orchards. Respondents No. 1 to 3 are the legal heirs of the original plaintiff Lai Chand (since deceased). 3. The plaintiff Lal Chand filed a suit against the partnership firm through its partners for declaration that he is the owner and in possession of the land measuring 28 bighas 7 biswas (detailed in the plaint and hereinafter referred to as the land in dispute) being a part of the landed estate measuring 108 bighas 6 biswas owned and possessed by him and that the revenue entries showing the defendants to be the owners and in possession of the land in dispute are wrong, illegal, in-effective and not binding on his rights. As a consequential relief, permanent injunction was sought for restraining the defendants from interfering in any manner with the ownership and possession of the plaintiff qua the land in dispute. Such suit was decreed in favour of the plaintiff Lai Chand by the learned trial Court on 30.11.1987. 4. The petitioners, who were proceeded exparte in the suit, on 17.2.1999, that is, more than eleven years after the decree preferred an appeal against the decree dated 30.11.1987. An application, being No. 272-CM/6 of 2001, was made by them in such appeal for condonation of the delay in filing the appeal. It was averred that they were never served in the suit and as such were not aware of the suit or the decree passed therein. They came to know about the decree dated 30.11.1987 only in October 1998 during the course of partition proceedings in respect of the joint land of the partners of the firm Messrs. It was averred that they were never served in the suit and as such were not aware of the suit or the decree passed therein. They came to know about the decree dated 30.11.1987 only in October 1998 during the course of partition proceedings in respect of the joint land of the partners of the firm Messrs. Devi Orchards. Thereafter legal advice was obtained and after having made available the certified copies of the judgment and decree dated 30.11.1987, the appeal was filed on 17.2.1999. 5. Admittedly, an application for. obtaining the certified copy of the judgment and decree dated 30.11.1987 was made on 24.11.1998. Such copy was supplied on 8.1.1999 and the appeal came to be filed on 17.2.1999. 6. The learned District Judge upon consideration of the evidence led before him came to the conclusion that the two petitioners were duly served in the suit and that there were no sufficient grounds for the condonation of delay of more than eleven years in filing the appeal. 7. Aggrieved by the order of the learned District Judge refusing to condone the delay, the petitioners are before this Court by way of the present revision petition. 8. It is the admitted case of the petitioners, as is evident from the averments made in paras 1 and 2 of their application under Section 5, Limitation Act, 1963, that they along with respondents 4 and 5 are the partners of the firm respondent No. 6. It is also their admitted case that the firm respondent No. 6 is the owner and in possession of the land in dispute. 9. The suit was filed by the plaintiff Lal Chand against the firm Messrs. Devi Orchards through its partners, namely, Ram Murti Sareen, Om Parkash Sehgal, Jiya Lal and the two petitioners. 10. It is also their admitted case that the firm respondent No. 6 is the owner and in possession of the land in dispute. 9. The suit was filed by the plaintiff Lal Chand against the firm Messrs. Devi Orchards through its partners, namely, Ram Murti Sareen, Om Parkash Sehgal, Jiya Lal and the two petitioners. 10. Order XXX, Code of Civil Procedure, deals with "Suits by or against Firms and Persons carrying on business in names other than their own." Rule (1) of the said Order provides: "Suing of partners in name of firm.-—(1) Any two or more persons claiming or being liable as partners arid carrying on business in [India] may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct." 11. Rule (3) of Order XXX, which deals with service of summons where persons are sued as partners in the name of their firm, further provides: "3. Service.—Where persons are sued as partners in the name of their firm, the summons shall be served either— (a) upon any one or more of the partners, or (b) at the principal place at which the partnership business is carried on within [India] upon any person having, at the time of service, the control or management of the partnership business there, as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without [India] : Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within [India] whom it is sought to make liable." (Emphasis supplied) 12. Even if it be assumed that no summons of the suit were served on either of the two petitioners personally, it is on the record that two other partners, namely, S/Shri Ram Murti Sareen and Om Parkash Sehgal, of the petitioners were only served in the suit and in fact appearance was put in on their behalf by their counsel. 13. As stated above, the suit was filed against the firm Messrs. Devi Orchards, of which the petitioners are admittedly the partners. Since two of the partners of the firm were duly served, such service within the meaning of Rule 3 of Order XXX shall be deemed to be good service upon the firm so sued and all the partners of the firm would be bound by it. Under Rule 6 of Order XXX it is the duty of the partners to put in appearance individually in their own names. Rule 6 provides : "6. Appearance of partners.—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." 14. Admittedly, the petitioners failed to put in appearance in terms of Rule 6 of Order XXX. The firm was duly served within the meaning of Rule 3 of Order XXX and such service would be valid and binding as against the petitioners as well. Therefore, it is not open to the petitioners to say that they were not aware of the pendency of the suit or he decree dated 30.11.1987 or that they came to know about such decree only in October 1998. 15. The learned District Judge was, therefore, right in declining to condone the delay and in dismissing the application made under Section 5, Limitation Act. The impugned order does not suffer from any illegality or impropriety and it does not call for any interference by this Court in exercise of revisional powers. 16. As a result, the present petition fails and the same is accordingly dismissed with costs quantified at Rs. 2,200. Petition dismissed.