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2005 DIGILAW 570 (RAJ)

Satyanarain v. Kewal Chand

2005-02-18

B.PRASAD, DALIP SINGH

body2005
Judgment B. Prasad, J.-This appeal is filed by the plaintiff appellant being aggrieved by the decision of the learned Single Judge of this Court passed in First Appeal No. 43/88 on 24.01.1989. The matter came up before the learned Single Judge after the trial Court decreed the suit filed by the appellant. The first appeal was preferred by Shri Kewal Chand and Shri Hasti Mal. The case before the learned Single Judge was that the plaintiff Shri Satyanarain had filed a suit against the defendant firm M/s. Oswal Industries, Nagaur and two of its partners alleging inter alia that they were the partners of the firm. In the suit in question, the respondents had put in appearance. After putting in appearance, they raised protest that they are not partners of the firm concerned. In such a situation, the plaintiff was required to serve the firm M/s. Oswal Metal Industries. It was also alleged that the original rent deed was executed in between the plaintiff and firm M/s. Oswal Metal Industries. The rent deed was executed on 210.1979 and was a duly registered document for a period of three years. 2. Learned Single Judge of this Court while considering the appeal of the appellant, observed inter alia that the trial Court has not proceeded with the trial in the manner prescribed in law. According to the learned Single Judge, the defendant tenant had appeared in protest denying that they were partners at material time, and therefore, they entered appearance under protest. In this background, the written statement filed by the appellants was to be taken off the file. With the result, the firm would remain undefended. In that situation, the parties were required to take steps as required under law. Learned Single Judge remanded the matter back. 3. The learned Single Judge has held that “for the purpose of the partnership firm, a retired partner ceases to be a partner of the firm from the date of his retirement. The question of his liability to 3rd parties is based on a different rule of law and is not based on the assumption that he continues as a fact to be a partner of the firm.” According to the learned Single Judge, it was required that the trial Judge determine certain questions. The question of his liability to 3rd parties is based on a different rule of law and is not based on the assumption that he continues as a fact to be a partner of the firm.” According to the learned Single Judge, it was required that the trial Judge determine certain questions. It was held that “unless an application made by either party, the Additional District Judge determined under Order 30 Rule 8(2) of the Code that the appellants were partners of the firm at the material time. This inquiry was not made by the Additional District Judge probably because neither side made an application to that Court for determining this question.” Learned Single Judge further held that since the two partners have entered in appearance under protest, the defendant will have the manner of action as prescribed by the learned Single Judge which is reproduced as under: “I may not be understood as saying that the plaintiff cannot implead the appellants as defendants in this suit if they so want to do in order to make them liable for any decree by taking resort to Section 32(3) of the Partnership Act read with Section 72 of the said Act. The plaintiff will be at liberty to implead the appellants as independent defendants apart from as partners of the firm M/s. Oswal Metal Industries Nagaur and amend their plaint to make them liable under Sub-section (3) of Section 32 of the Partnership Act. This order will also not affect the right of the plaintiff to apply under Order 30 Rule 8(2), CPC to the Additional District Judge for determining whether the appellants were partners of the firm at the time of the accruing of the cause of action and/to pass appropriate orders under the said provisions. It would depend on the determination of the Additional District Judge under Order 30 Rule 8, CPC as to whether the appellants were partners of the firm at any material time or not for the purposes of further determining whether the partnership firm has been duly served or needs fresh service in accordance with Order 30 Rule 3 of the Code.” 4. The aforesaid observation of the learned Single Judge goes to show that the question, whether the partners had retired or continue to be partners at the relevant time? The aforesaid observation of the learned Single Judge goes to show that the question, whether the partners had retired or continue to be partners at the relevant time? and whether the firm was required to be served were material questions which were not decided by the trial Court. In that view of the matter, the learned Single Judge remanded the matter back to the trial Court. The appeal was filed before Division Bench against the Judgment of learned Single Judge. In appeal, appellant plaintiff had joined Kewal Chand and Hasti Mal as defendants and described them (at the bottom) as partners of the firm M/s. Oswal Metal Industries. In the suit, the partners were defined after naming the firm. The appeal before the first appellate Court was filed on behalf of Kewal Chand and Hasti Mal impleading partnership firm M/s. Oswal Metal Industries as an independent defendant/respondent alongwith the plaintiff/respondents. An application was also filed before the trial Court by the defendants under Order 6 Rule 5, CPC. In reply to this application, the plaintiff appellants submitted that partnership firm M/s. Oswal Metal Industries has been impleaded as defendant. Thus, it has been noticed by the learned Single Judge that the firm has been taken to be impleaded as party in the suit and subsequently in appeal. In the first appeal, the firm was independently served but in the appeal before us though the name of the firm has been mentioned, no steps were taken by the appellant plaintiff to get the service effected on the firm independently. In this regard, written submissions were made on behalf of Kewal Chand and Hasti Mal that having not served the firm M/s. Oswal Metal Industries, the appellant has committed an illegality. The service of summon having not been effected in terms of Order 30 Rule 8, CPC, the firm cannot be proceeded against. The appeal is thus incompetent. 5. The plaintiff appellant in reply to this have stated that if the Court feels that it is a mis-description, it may be attempted to be corrected now. This has been stated by the appellant in his written submission. Impleadment of party and serving a respondent independently requires something more to be done than what has been done on behalf of the appellant. This has been stated by the appellant in his written submission. Impleadment of party and serving a respondent independently requires something more to be done than what has been done on behalf of the appellant. No effort has ever been made by the appellant even when this situation was specifically made known to him that there had been a mis-description. As there have been no service of the firm concerned against whom the original suit has been filed. In such contingency, a reference may be made to the provisions contained in Rules 131 and 145 of the High Court Rules; 131. Contents of memorandum of appeal or application for review or revision.-Every memorandum of appeal or application for review or revision shall state- .(a) thename and address of each appellant or applicant, and whether he was plaintiff or defendant or applicant or opposite party in the Court of first instance; .(b) the name and address of each person whom it is proposed to join as respondent or opposite party in the Court of first instance; .(c) the name of the Court by which, and the name of the Presiding Officer by whom, the decree or order objected to was made; .(d) the number and description of the case; .(e) the date when such decree or order was made; .(f) the grounds, numbered consecutively, of objection to such decree or orders; .(g) the precise relief sought; .(h) value for purposes of (1) jurisdiction and (2) Court fee; and .(i) in caseof an appeal from an original decree, whether the suit on which the appeal arises as already been before the Court on appeal, and the particulars of such appeal if any, and shall be signed by the appellant or applicant, as the case may be, or on his behalf by an Advocate on the roll of the Court. Where the particulars mentioned in Clause (i) are not available at the time of the filing of the appeal, they may be supplied as soon as available.” 145. Where the particulars mentioned in Clause (i) are not available at the time of the filing of the appeal, they may be supplied as soon as available.” 145. Defective application or memorandum of appeal or objection may not be received.-No application or memorandum of appeal or objection shall be received, if it is not in the proper forum or is not accompanied by the necessary documents: Provided that the Registrar may receive it and for sufficient cause shown, grant such time as he may consider proper for supplying such document or removing such defects: Provided further that nothing done under the first proviso shall have the effect of extending the period of limitation in the case of memorandum of appeal where the copy of the Judgment or decree or formal order is not filed within the prescribed time. If the required documents are not supplied or the defects are not removed within the time allowed by the Registrar, the application or memorandum of appeal shall be listed for rejected before the Court.” 6. The aforesaid quoted High Court rules make in mandatory that as and when an appeal or petition is filed before this Court, the description of the parties has to be what was in the lower Court. Without that, the matter will be considered to be in defect. The defect came to be point out to the appellant by the respondents during the course of hearing though office report neglected the same. But the fact remains that the defect has been brought to the notice of the appellant which the appellant has not attempted to get cured in the manner as prescribed in the High Court rules. 7. If a defect is not cured by the party after having known it, then natural consequence is that the party is neglectful. A neglectful party cannot claim that the Court should express a desire to get a party impleaded. It would have been something different if the appellant had made an application then, the Court would have considered it proper to permit the correction of mis-description. A neglectful party cannot claim that the Court should express a desire to get a party impleaded. It would have been something different if the appellant had made an application then, the Court would have considered it proper to permit the correction of mis-description. In the background where the appellant wants to take advantage of the confusion and leaves it to a situation, may be to make use of the same if occasion arises, this reflects the wagering tendencies of the litigant where he wants to score on account of the situation which arise due to a flexible situation. A litigant is required to state his case with exactitude and take a firm stand. May be in certain contingencies, it is permitted to take conflicting stands but then such stands are to be properly defined and not left to the happenings which may occur during the trial. The liberties which the appellant has designed to take in the case are evident from the decision of the learned Single Judge. The learned Single Judge has expressed that when the partners had shown their appearance under protest, then steps were required to be taken by the appellant for which the learned Single Judge has remanded the matter to the trial Court. 8. The remand of the matter was itself a sufficient indulgence granted to the appellant but the appellant has not cared to define his moves in accordance with law. Even in this appeal which according to High Court rules is a defective appeal, after having known about the defects, the appellant had chosen to justify it. Having not taken remedial steps, it had tried to leave it to the Court referring to a decision reported in 1961 SC page 325 for corrections in the memo of appeal. There is a definite method provided and having not chosen to take those steps, the appellant deserves no sympathy at the hands of the Court. The finding of the learned Single Judge is that no steps have been taken by the appellant to serve the defendant firm, there was no proper service on the firm. There is a definite method provided and having not chosen to take those steps, the appellant deserves no sympathy at the hands of the Court. The finding of the learned Single Judge is that no steps have been taken by the appellant to serve the defendant firm, there was no proper service on the firm. A reference in this regard may be made to a decision in the matter of International Continental Caoutchoue Compagnie vs. Mehta & Company, reported in AIR 1927 Cal 758, wherein it has been held as under:- “The effect of Rule 8, as affecting the proceedings against the firm, is that where a person, who has been served as a partner under Section 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 in accordance with Rule 3, unless it has already been otherwise effected, as for instance, by service on some other person as a partner who has not entered appearance under protest. A person who has been served as a partner under Order 30 Rule 3, and entered appearance under protest is not entitled to file a written statement on his own behalf denying that he is a partner.” 9. A reference may further be made to decision of Honble Supreme Court in the matter of Gajendra Narain Singh vs. Joharimal Prahlad Rai, reported in AIR 1964 SC 581 , wherein, Honble Supreme Court has held as under- “In respect of a suit filed against a firm, Rule 8 of Order 30, Civil PC enables the person served as a partner of the firm to appear under protest and to deny that he is a partner of the firm which is sued. Appearance under protest by the person sued renders the service of summons as regards the defendant firm ineffective. The plaintiff may obtain a fresh summons against the firm and serve it in the manner prescribed by Order 30 Rule 3 against another person who is alleged to be a Partner by the plaintiff or against the person who has the control or management of the partnership business. The plaintiff may obtain a fresh summons against the firm and serve it in the manner prescribed by Order 30 Rule 3 against another person who is alleged to be a Partner by the plaintiff or against the person who has the control or management of the partnership business. A decree against the defendant firm so obtained with leave under Order 21 Rule 50(2) be executed against the firm and also against the person who had been initially served as a partner and who had appeared under protest denying that he was a partners. The plaintiff , however, is not obliged to obtain a fresh summons : he may request the Court to adjudicate upon the plea of denial of raised by the person served and appearing under protest. The Court will then proceed to determine the issue raised by that plea. If the Court finds on evidence that the person served was not a partner at the material time, the suit cannot proceed, unless summons is served afresh under Order 3 : if the Court hold that he was the partner, service on him will be regarded as good service on the firm and the suit will proceed against the firm.” 10. A reference in this connection may also be made to the case decided in the matter of C.S. Ramanujachary vs. Pohoomal Bros., reported in AIR 1926 Bom 585, wherein, the Court held as under: - “What is true legal position when a person who has been served with a summons as a partner enters an appearance under protest denying he is a partner has not clearly been understood in this case. Such an appearance has nothing to do with the merits of the case, but only with the question whether the summons has been properly served according to the rules. Its effect is merely to nullify the service altogether as regards the defendant firm. The plaintiff may then disregard the appearance under protest and proceed again in his endeavours to serve the summons in accordance with the provisions of Rule 3. Its effect is merely to nullify the service altogether as regards the defendant firm. The plaintiff may then disregard the appearance under protest and proceed again in his endeavours to serve the summons in accordance with the provisions of Rule 3. If he succeeds in doing this and obtain Judgment against the firm, he may apply under Order 21 Rule 50, for leave to issue execution against the person who had appeared under protest, when, if the liability is still disputed, the Court may order the liability of such person to be tried and determined in any manner in which any issue in a suit may be tried and determined. Or the plaintiff may wish to challenge at once the denial of the person served as a partner that he was a partner. If so he should take out a summons to strike out the appearance entered on the ground that the party appearing is a partner in the firm sued or was a partner at the time the cause of action accrued, or, in the alternative, to strike out of such appearance the denial of partnership. An order may then be made directing an issue to be tried to determine the questions of partnership.” 11. In view of the aforesaid, if we consider the question raised by the learned Counsel for the appellant that the two partners having been served, there was sufficient service on the firm, does not appear to be a sound proposition of law. The partners who have put in appearance have categorically taken a stand that in law, they were not entitled to represent the firm, as they were not the partners. The finding of the learned Single Judge that steps should be taken as indicated in the Judgment appears to be a correct proposition. We are in agreement with the findings of the learned Single Judge. In that view of the matter, the arguments of the learned Counsel for the appellant cannot be countenanced and they deserve to be rejected. The steps as indicated in the Judgment of the learned Single Judge if considered proper, may be taken by the appellant in the Court which will deal with the case after remand. This depends on the course of action as the plaintiff will chose when he joins the issue after remand. The steps as indicated in the Judgment of the learned Single Judge if considered proper, may be taken by the appellant in the Court which will deal with the case after remand. This depends on the course of action as the plaintiff will chose when he joins the issue after remand. We have relied on the law laid down by Honble Supreme Court hereinabove which specifically make a provision that what should be the mode of service on the firm when the partner of the firm put in appearance under protest. In that view of the matter, we are not inclined to interfere with the order of remand as ordered by the learned Single Judge. 12. There is no force in the appeal. The appeal is hereby dismissed.