SOORAJMULL NAGARMULL Vs. FIRM HARIBUX SHEWNATHRAI

JUDGEMENT

(1.) This is an application by the defendant firm, Haribux Shewnathrai to set aside an ex parte decree passed against the firm on 26 August 1943. It appears that there were three suits instituted against this defendant firm, this suit No. 967 of 1943; suit No. 968 of 1943 in which the Naskarpara Jute Mills Go. Ltd. were the plaintiffs; and suit No. 1056 of 1913 in which the Bengal Jute Mill Co. Ltd, were the plaintiffs. All these suits were instituted in July 1943. The writ of summons in this suit and in suit No. 968 were issued on 16 July and lodged with the Sheriff on 17 and the writ of summons in suit No. 1056 was issued on 30 July and lodged with the Sheriff for service on 81 July.

(2.) The Sheriff's officer in suit No. 1056 and suit No. 968 was Pashupati Sircar. In suit No. 967, the present suit, the Sheriff's officer was Hrishikesh Das. In each case the service was sought to be effected at the place where the defendant firm carries on business, namely, at 26/4, Armenian Street. In the present case the plaintiffs obtained leave to serve the writ of summons on Radha Kissen as a partner of the defendant firm and that leave was granted. Admittedly, Radha Kissen was in Calcutta at all material times, though he is said to be now in ill-health and in a sanitorium outside Calcutta. It is admitted, however, that he was in Calcutta throughout August a September, and part of October 1943. The dates on which service was sought to be effected were 2nd, 3 and 4 August. The Sheriff's officer Hrishikesh Das went with Surendra Chandra Bhowmic, one of the plaintiff's employees, to 26/4, Armenian Street, and in the affidavit of service they state that they went there on three occasions, namely, at 5 o clock on 2nd, at 4 o clock on 3 and at noon on 4 August, and that failing to find Radha Kissen or any person authorised on his behalf on whom proper service could be made after due diligence and as there was no likelihood of Radha Kissen being found there within a reasonable time, on 4 August at noon, they served the writ of summons by affixing a copy on the outer door of the premises No. 26/4, Armenian Street. In the other two cases the Sheriff's officer Pashupati Sircar also went with the plaintiff's employee to serve the writ of summons at the same premises on 2nd, 3 and 4 August. Pashupati Sircar in his affidavit says that the premises were locked from outside and there appeared to be nobody inside the room occupied by the defendant firm and on the outer door of which there appeared the defendant firm's name plate. On 3 August at six in the evening a durwan on the premises informed Pashupati Sircar that Radha Kissen was the only person who occupied the room, he usually went out early in the morning and came back at 2 o clock. Accordingly Pashupati Sircar went back to the premises on 4 August but could find nobody, the room was still locked up and therefore he affixed a copy of the writ of summons on the outer door. I mention these facts because it appears from them that Radha Kissen was present in Calcutta and that he was on the material dates attending the office at which service was sought to be effected.

(3.) Radha Kissen has not sworn any affidavit, but Nathmull, the Munib Gomasta, who says that he is looking after the business of the defendant firm, has verified the petition in which he states that on 26 August he and a partner went to their attorney to arrange for the defence in suit No. 1056. By a curious coincidence it happened that on that particular date the other two suits, suit No. 968 and the suit in which this present application is being made were appearing in the cause list among the undefended suits for disposal. The defendant firm's attorney Mr. Poddar is said to have made enquiries and found that the present suit and suit No. 968 had already been decreed, and he passed on this information to the defendant firm. The defendant firm states that it is in this manner that they first came to know that this suit the decree in which they are now seeking to set aside, was instituted against them. Apparently no steps were taken until 8 November 1943 when the present notice of motion was taken out.