SITARAM RAMAVTAR Vs. LOHIYA MURLIDHAR MEGHRAJ

JUDGEMENT

(1.) THIS is a miscellaneous appeal under O. 43 r. 1 (d), Code of Civil Procedure and is directed against the order dated 14-9-74 of the Additional District Judge No. 2, Jodhpur, by which he refused to set aside the exparte decree passed against the appellant.

(2.) BRIEFLY stated the facts of the case are that the respondent firm, M/s. Lohiya Murlidhar Meghraj sued M/s. Sitaram Ramavtar for recovery of Rs. 17,000/. for some alleged breach of contract. The appellant firm M/s Sitaram Ramavtar is a partnership firm and has been working as commission agents in Hyderabad (Andhra Pradesh ). The respondent's suit had been registered on 14-10-70 by the District Judge, Jodhpur but it was transferred for trial to the court of Additional District Judge No. 2, Jodhpur. On 19-10-70 summons were ordered to be issued for service in ordinary course on the defendant firm. In addition to that process, summons were also ordered to be sent by registered post. The notices which were sent in the ordinary course being in Hindi were sent back by the court of District Judge, Hyderabad with the remarks that the notices be sent in English for service. The notice that was sent under registered cover came back with the remark 'refused'. This endorsement was purported to have been made on 30-11-70. The date fixed in the case was 26-11-70. The learned trial judge did not think service by registered notice as sufficient. On 11-12-70 without issuing any further summons in ordinary course, he ordered that notice be sent under registered cover and the case was fixed on 14-1-71. On that date the notice sent by registered cover was received back with the remark 'refused'. The learned trial judge deemed this to be sufficient service and proceeded with the suit exparte against the defendant firm. After recording the evidence exparte, he decreed the plaintiff's suit on 23-10-72.

(3.) IT has been urged that the defendant firm is a partnership firm and there are two partners in that firm, namely, Sitaram and Jagannath. The requirement of this r. 3 of this order is that if persons are sued as partners in the name of the firm, the summons shall be served either on any one or more of the partners or at the principal place of partnership business upon any person having at the time of service the control or management of the partnership business as directed by the Court. The plaintiff is supposed to seek the direction of the Court to effect service when he sues in the name of the firm. In the present case the directions under O. 30 r. 3 C P. C. were not obtained by the plaintiff. One copy of the summon was sent contained in a registered letter addressed to the firm for service. The letter was not addressed either to Sitaram or to Jagannath and there has been no positive service on any of them. The refusal cannot be understood to have been made by Sitaram or Jagannath or by anyone else. If the directions had been sought and the registered letter had been addressed either to Sitaram or Jagannath or to both the matter would have been clear as to whom the endorsement of refusal was intended to relate.