LAXMI TRADING Vs. SHRIRAM GOBINDNARAIN

JUDGEMENT

(1.) This is an appeal by the Plaintiff in a suit brought on the Original Side of this Court against an order of P.B. Mukharji J., whereby the learned Judge refused to interfere with an order made by the Master to the effect that he was unable to make any order on the application made by the Appellant before him. The question involved in the appeal turns upon the true construction of the provisions of Rule 5 of 0rder IX of the Code of Civil Procedure.

(2.) The suit was instituted on June 25, 1953, for the recovery of a sum of Rs. 11,143-8-0 from a firm, called Shriram Gobindnarain, alleged to be the principal of the Plaintiff. The money was claimed by way of indemnity for some liability incurred by the Plaintiff on account of the Defendant.

(3.) On the very day the suit was filed, the Plaintiff moved an application before the Master for leave to serve the Writ of. Summons on the Defendant by serving it on one Tarachand Agarwala, said to be the manager of the Defendant firm or the person in actual control of it. The order prayed for was immediately made. The Writ of Summons was issued on July 3, 1953, and it was lodged with the Sheriff on July 7 following. Then, it is said, commenced a chapter of events which, to say the least, are not very credible. It is alleged that in the first week of July, 1953. one Madanchand Surana, a partner of the Appellant firm, paid a visit to Tarachand Agarwala, informed him of the institution of the suit and and made a request that the matter should be settled and the amount claimed paid off amicably. Tarachand Agrawala is said to have asked the Appellant not to incur any further expenses or take any further steps and to have assured him that he would open negotiations with the partners of the Defendant firm who were residing at Hyderabad. Further negotiations are alleged to have gone on and they proceeded, according to the Appellant, up to the middle of April, 1954. It is not necessary to set out the details of the various representations said to have been made by Tarachand Agarwala at various times. About the middle of April, Madanchand is said to have called again at 24 Burtolla Street, which used to be the Calcutta office of the firm, and found that Tarachand was then living there with his family. During that visit, Tarachand is said to have told Madanchand finally that he could not help him, as the partners of the Defendant firm had not remitted any money to him and he is said also to have refused to disclose the address of the said partners. Thereafter, the Appellant is said to have given instructions to his solicitor to take the necessary steps for causing the Writ of Summons, to be served upon the Defendant firm.