AJIT KUMAR SHAHA Vs. MRITUNJOY KUNDU

JUDGEMENT

(1.) This is an appeal against an order of the Subordinate Judge of Nadia refusing to set aside an ex parte decree passed against Ajit Kumar Sana the appellant. Ajit says that he was never served with the summons and that it had never been brought to his notice before the ex parte decree was passed. The learned Subordinate Judge has found that Ajit was aware of the service of the summons and of the suit. It appears that there were three brothers, Defendants Nos. 10, 11 and 12 who formerly lived at a place called Kumarkhali. It is established on the evidence that Ajit left Kumarkhali some 12 years ago and that since that date he had been residing and carrying on a business at Ranchi. It is true upon the evidence that occasionally he does visit Kumarkhali. that he has become a Brahmo and that as a result his visits are rare. Whether he is still interested in the joint family property I feel some doubt upon the evidence. He himself says that he has no longer a share in the joint family property and that his interest was sold after he went to Ranchi. Defendant No. 12 Arun Kumar Saha gives evidence to the same effect stating that there had been an amicable partition as regards Ajit's share, but that there was no partition so far as others were concerned. There is some evidence to the contrary, but I am inclined to think that Ajit's evidence is true, that he has no longer an interest in the joint family property. But even if he had an interest my view would not be affected as to whether there has been good service in the present case. Now what happened is this. Arun was residing at Kumarkhali and according to the peon and the identifier the peon went there and tendered the summons to Arun and was told to affix the summons of Ajit. I am satisfied that the peon made no enquiry as to the real facts though he does state in his return that he made some enquiry. Even if his story is correct that Arun was told that one summons was for his brother and told the peon to affix it, I am of opinion that that would not be a good service, under the circumstances I have stated, upon Ajit. Consequently I think upon the facts that there was no service of the summons upon Ajit. But it is urged by the learned advocate who appears for the respondents that having regard to the form of the suit the service upon Ajit was a good service. For this he relies on the provision of Order 30, Rule 3 of the Civil P.C. Order 30, Rule 3 provides that where persons are sued as partners in the name of their firm the summons shall be served either upon any one or more of the partners or at their principal place of business and that such service shall be deemed good service upon the firm so sued and it is, therefore, stated that the service upon Atul who we shall assume was a member jointly with Ajit of the partnership Firm of Hari Nath Saha and late Purnananda Saha was good service, We think that this would be sufficient if the suit had been brought merely in the firm's name. But a perusal of the plaint shows that the suit was brought against the Firm of Hari Nath Saha and the late Purnananda Saha and the partners of the said firm and then follow the names of the various partner; and the plaint asks that a decree should be passed against the defendants for the amounts of their claim. The decree does not make it quite clear whether the decree was one against the firm or against the Individual partners. But I am inclined to think that it was a decree against the individual partners, because the defendants were ordered to pay to the plaintiff the sum decreed. This being so, Order 30, Rule 3 has no application as the suit was not a suit against the partners in the name of their firm under Order 30, Rule 3. This being so, for the reasons I have Indicated there was no good service upon Ajit and the appeal succeeds and we set aside the order of the Subordinate Judge refusing to set aside the ex parte decree and we set aside the ex-parte decree.

(2.) The appellant will be entitled to his costs in this appeal hearing fee two gold mohurs.

(3.) Let the record be sent down without delay. Cuming, J.