Judgment:
ORDER
1. These are two applications in two suits made by Banwari Lall Pasari who is the second defendant in one suit and the third defendant in another, for setting aside two ex parte decrees passed in the two suits on the 10th February 1992.
2. The other defendants against whom the decrees are also binding have not made applications for setting aside of the decrees.
3. It can hardly be disputed that for the past six years the plaintiffs have been in possession of the two flats in respect of which the decrees were passed pursuant to which the learned Registrar, 0.5, has already executed appropriate conveyance in favour of the plaintiff.
4. The ground why the second defendant wishes to have the ex parte decrees set aside is the ground of non-service of the writ of summons.
5. In both these cases a single note, one in each suit, issuing from the Sheriff's office had been relied upon by the plaintiff for the purpose of proving service. Along with the two notes in the two cases, there were two affidavits of service of an attorney's employees, one Sukdeb Das. In one of the affidavits Sukdeb Das wrongly states that the writ of summons was served upon the partner Banwari Lall Pasari himself. However, in the other affidavit of service and in the two notes issuing from the Sheriff's office it is clear chat the defendant Banawari Lal Pasari was not personally served, but that, the service was through one O. P. Singh, at 16, India Exchange Place, the address given in the plaint.
6. The name of 0. P. Singh is mentioned in one note from the Sheriff's office but not in the other. The signatures on the reverse of thetwo writs of summons are similarly made, apparently by O. P. Singh.
7. The first point raised was a point of fact. Mr. Chatterji said that O. P. Singh is not in the employment of the concerned defendant Banwari Lall Pasari at all. I am unable to accept that contention on facts for the reasons as follows.
8. The same note issuing from the Sheriff's office contains service regarding all the defendants. If Mr. Chatterji's contention is to be accepted then I would have come to the conclusion that the two notes from the Sheriff's office are partly false. There is no reason to come to such conclusion. There is no reason to come to the conclusion that 16, India Exchange Place had not actually been visited.
9. It is not un-understandable if Banwari Lall Pasari did not resist the suit in spite of getting notice through O.P. Singh. The said defendant has shown no apparent interest in the two flats for the past six years which were continued to be possessed by the plaintiff, and the suit merely perfected their legal title thereto. No decree for possession had thus been claimed at all. It is conceivable that the defendant Pasari had lost interest in the two flats and thus in the two suits.
10. If Pasari was unaware of the suit then some explanation should be given why and they became aware of the suit after the passing of the ex parte decree so as to be able to initiate these applications. The explanalion in paragraph-2 in the petition in Suit No. 470 relied upon by Pasari is, to say the least, extremely vague.
11. Pasari is said to have received enquiries from a property dealer as to how Pasari acquired interest therein. Upon such inquiries Pasari is said to have become suspicious and made enquiries and it was revealed to Pasari that two High Court suits have been pending. The process of such revelation is not to be understood from the reading of paragraph 2.
12. In the Affidavit-in-Reply the saidproperty dealer has been mentioned as Jawaharlal Agarwal and the affidavit of the said Agarwal is also annexed. In that affidavit it is stated that Agarwal came to know that the first floor of the premises 113, Park Street was for sale. Upon such knowledge, he contacted Banwari Lall Pasari. Banwari Lall Pasari, apparently, intimated that they were the owners. Thereafter, Jawaharlal Agarwal lost interest in the matter.
13. Neither from the petitions used in the two suits, nor from the affidavit of Jawaharlal Agarwal, is any satisfictory explanation to be found as to how the ex parte decrees came to the knowledge of the applicant defendant. The only conclusion possible therefrom is that the suits were already in the knowledge of the applicant from the wril of summons served through 0. P. Singh.
14. Mr. Chatterji, thereafter, raised the point that under Order 30 Rule 3 read with R. 5 of the Code of Civil Procedure the service upon O. P. Singh would be not in accordance with the law. Mr. Chatterji also relied upon several Rules of Order 5 of the Code of Civil Procedure, and those were Rules 9, 10, 11, 12, 13, 14 and 15. Set out below are the above Rules :--
'Order -- V'
'9. Delivery or transmissions of summons for service:
1. Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates.
2. The proper officer may be an officer of a Court other than that in which the suit is instituted, and where he is such an officer, the summons may be sent to him by post or in such other manner as the Court may direct.
10. Mode of Service:--
Service of the Summons shall be made by delivering or tendering a copy thereof signedby the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court.
11. Service on several defendants:
Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.
12. Service to be on defendant in person when practicable, or on his agent:--
Wherever it is practicable service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.
13. Service on agent by whom defendant carries on business:--
1) In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service.
2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner of charterer.
14. Service on agent in charge in suits for immovable property:--
Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property.
15. Where service may be on an adult member of defendant's family:--
Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf,service may be made on any adult member of the family, whether male or female, who is residing with him.
Explanation:-- A servant is not a member ofthe family within the meaning of this rule.
'Order - XXX' Rule -- 3.
Service:--
Where persons are sued as partners in the name of their firm, the summons shall be served either:
a) upon any one or more of the partners, or
b) at the principal place at which the partnership business is carried on within India upon any person having, at the time of service, the control or management of the partnership business there, as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without India;
Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within India whom it is sought to make liable.
5. Notice in what capacity served :--
Where a summons is issued to a firm and is served in the manner provided by Rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner.'
15. Mr. Chatterji also relied upon the case of Harjiban Das Gordhan Das v. Bhagwan Das Pursram reported in ILR 49 Calcutta, 394 : (AIR 1922 Cal 390) and placed the passage 'from the judgment at page 397, Rankin, J. held in that case that the only mode of service upon a partner is as content-plated under Order 30 Rule 3 of the Code. Mr. Chatterji submits on the basis thereof that O. P. Singh being neither a partner nor a person in charge of the business at a principal place, service upon O. P. Singh would be inadequate even if effected in fact.
16. In the supply copy of the affidavit in reply, O. P. Singh was said in paragraph 6 (Suit 470) not to be an authorised employee of the applicant defendant for accepting service. The word 'authorized' was not struck out in the supply copy, though it was struck out in the reply before the Court. There is no case in the petition sufficiently dealing with O. P. Singh or his employment to merit any discussion. It is easy to deny the existence of an employee of his authority on the part of a non-appearing defendant, but if such facile denial is to be accepted by a Court, it causes serious prejudice to the plaintiff, which is not always rectifiable by mere payment of costs. A defendant who allows adecree to be passed and tries later on to defend the suit, does so with an ulterior motive. It is not to shut out any defence that an ex parte decree is preserved. Ex parte decrees are preserved, on the other hand, for the purpose of preventing the defendant from having a second attempt at the suit at the time of its or his own choice. Permitting such a second attempt at the unilateral choice of an earlier non-appearing defendant might cause unrectifiable serious prejudice to the plaintiff, and that is why it is not permitted in law.
17. To come back to the point of law. Mr. Chatterji's principal submission was, that, on a plain reading of Order 30 Rule 3 of the Code of Civil Procedure, it should be held, that, for the purpose of service upon a partner of a firm, the partner himself has to be served with the Writ of Summons. In my opinion this is an extreme proposition. Let me illustrate why I think this to be an extreme proposition. Suppose the Sheriff's serving officer along with an attorney's clerk visits the office of the partner for the purpose of service. Suppose the partner is sitting at a table with his right hand man in front of him, Suppose the partner audibly asks his right hand man to accept the service, Suppose also that suchservice is accepted by the partner's right hand man. If Mr. Chatterjee's proposition is right, then this is a bad service. This is a bad service because the partner has not himself been served with the Writ of Summons but that it is only the partner's right hand man who has received the summons pursuant to an oral authorization of the partner. It is not a service upon a partner personally.
18. Logically speaking, there is no difference between the picture I have made out above, and that of, let us say, an ordinary durwan receiving the Writ of Summons at a place of business where the partner carries on the partnership business. It is usual to assume authority on the part of the durwan merely to accept letters and communications for the purpose of physical onward transmission to the receiving section of the office. One does not have to have a registered power of attorney to take and deliver internally a letter or a summons. If such an authorization is to be implied for the ordinary act of taking and internally delivering paper communications, then it would lie heavily upon the person disputing service to show that an employee receiving papers at his admitted place of business was not authorized to receive papers on his behalf, and that such lack of authority was reasonably attempted to be made clear and manifest to any and all outsiders who might have occasion to effect service of any document or paper at the place when such specially unauthorized person is posted.
19. O. P. Singh was served according to the service records at 16, India Exchange Place which is the admitted business place of the Pasaris. There is no reason to doubt the ordinary authority of any and every employee including O. P. Singh to accept paper communications only for the purpose of onward transmission. No person ordinarily is expected to refuse altogether the service of a piece of paper. Such refusal can only be understood if the letter is suspected to be something like a letter bomb, but otherwise, the mere service of paper communication cannot be refused in any normally functioning business house unless something is being attempted to be intentionally avoided. All paper is normallyaccepted, may be, with a stamp of 'Contents not checked'.
20. In law, therefore, sub-rule 3(a) of Order 30 means that the Writ of Summons is to be served upon the partners, but not personally upon the partners. The word 'Personally' is absent in the sub-rule. It is well known that, one who does through another, does so oneself, in the eye of law. The Latin maxim is qui facit per alium facit per se. The literal meaning is that, who does through another does himself. The verb 'do' is a general verb, and can conjugate with any other verb. Instead of saying he talks, it is grammatically correct to say he does talk. Instead of saying he walks, it is grammatically correct to say he does walk. Accordingly it would be grammatically correct to say, he does accept, instead of saying he accepts. Upon an extension of this general principle therefore, it is possible to say that one who accepts service through another accepts such service oneself in the eye of law.
21. Mr. Chatterjee relied on various rules of Order 5 quoted above stating that a defendant can be served in many different ways which are not repeated in the case of partners in Order 30. For this proposition Mr. Chatterjee sought to derive additional emphasis from the case of Harjiban Das referred to above. However, that case does not interpret Order 30 Rule 3 but only lays down that Order 30 Rule 3 is the prescribed mode of service. It is unnecessary for me to examine in this case whether each and every mode of service upon an ordinary defendant as laid down in Order 5 would also be applicable in the case of a partner defendant. In our case, the applicability of Order 5 Rule 12 would be enough. Suffice it to say for our purposes here that a partner defendant is in no manner a special defendant of any type and does not enjoy any special impunity than any other defendant. Accordingly, unless the rules and the context definitely otherwise indicate, a partner defendant could be served in the same manner, as an ordinary defendant, and it would class as good service upon the partner in the eye of law. O. P. Singh being an agent for the ordinary purpose of receiving papercommunication, as his authority for such usual purpose was never manifestly taken away, service upon him was service upon the partner in a combined reading of Order 5l Rule 12 and Order 30 Rule 3.22. The above discussion should be enough for disposal of the short legal point, that, if, and even if, O. P. Singh was properly served, at the partnership business house, at 16, India Exchange Place, whether, even then, the partner can be said not to have been served, in accordance with Order 30 Rule 3. The answer is in the negative, i.e. it cannot be so said.
23. Mr. Chatterjee stated that there was relationship between the Pasaris and Poddar. Mr. Chatterjee further stated that it is pursuant to the relationship, or pursuant to an arrangement that the Pasaris had parted with possession to Poddar. That relationship or that family arrangement has remained shrouded in mystery. Of course, for the purpose of disposal of this application, it would not be material to call for a disclosure of such relationship, or to ask Pasari to explain why he had apparently lost all interest in the flats for upwards of six years,
24. Mr. Chatterjee has stated that the relationship of Poddar to Pasari was that of the wife's uncle to the husband. It is however material to note for the purpose of this application, that though the relationship, or arrangement, or rapport between Poddar and Pasari, was never stated to have snapped at any point of time, yet Poddar never complained of any lack of notice of the Writ of Summons, and in spite or Poddar's knowledge, Pasari, admittedly on good relationship with Poddar, was never (allegedly) told of the suit or any of the two suits. This is an additional reason for coming to the conclusion that the applications are not bona fide and that the case of non service is only an afterthought excuse wrongly made out on the part of the firm Banwarilal Pasari.
25. Under these circumstances, these two applications initiated by the two Notices of Motions each dated 6th April, 1992 in the two suits being 470 and 471 are dismissed withcombined costs assessed at 250 G.Ms.
26. Prayer for stay of operation of thisorder has been made on the part of the applicant, but the same is refused.
27. Parties, the department and all others concerned are to act on a signed copy of this Dictated Order on the usual undertakings.