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Suit No. 9 of 1948, and issue decided in 1949.

Civil Procedure Code (V of 1908), O. XXX, r. 8‑Appear ance under protest by alleged partner--‑Firm otherwise served under r. 3 through two other partners who did not appear-- Plaintiff entitled to adduce ex‑parte proof in spite of appearance of protesting partner.

The defendant firm was served trough three partners. Two of them did not appear in Court. The third appeared under protest under rule 8 of Order XXX, Civil P. C.

The plaintiff claimed that he was entitled to adduce proof ex‑parte in spite of the appearance under protest of one of the partners.

Held, that as the firm had been served otherwise under rule 3 of Order XXX Civil P. C. the plaintiff was entitled to adduce proof ex‑parte.

Provisions of rule 8 .of Order XXX and rule 50 of Order XXI, Civil P. C. show that a suit may be filed against a firm in its firm name and the firm may be served either through a partner who does not dispute that he is a partner pr through a person in control or management of the partnership business, and a decree may follow against the firm and be even satisfied from the property of the firm, without there arising the need to decide whether a person protest ing that he is not a partner is actually a partner or not and that the need for decision does not really arise till the plaintiff seeks to recover the judgment debt from a person as a partner in the firm against which there is an unsatisfied decree.

The appearance under protest is a matter which affects only the service of the summons on the firm sued and the suit might proceed in spite of and notwithstanding it, to a decree against the firm if the firm has otherwise been served under Order XXX, rule 3, Civil P. C.

[History of rule 8 of Order XXX, Civil P. C. traced to Rules of the Supreme Court in England.]

Weir & Co. v. Mc. Vicar & Co., L R (1925) 2 K B 127 ; F. O. Jetha Devji & Co. v. F. O. c7avhersing Harnamdas and others 26 S L R 228, 231, Compagne v. Metha & Co. I L R 54 Cal. 1057, 1061 ; Davies Qt Co. v. Audre dz Co. L R 24 Q B Div. 598 : Vithaldas v. Hansraj 23 B. L R 1249 ; Chotumal Bulchand v. Allibhoy Wainooji A I R (1926) Sind 154 ref.

Parmanand Thakurdas, for Plaintiff.

Manzar‑i‑Alam, for Defendants.

‑This is a suit against a firm in its firm name of Naraindas Gehimal Transport Company simpliciter, and on the application of the plaintiff under Order XXX, rule 3 of the Code of Civil Procedure, 1908, A. M. Qureshi has been served as a partner in the defendant firm. He appeared in the suit and filed a written statement wherein he took the following objection:

"5. That defendant No. 2 is wrongly impleaded as partner of the firm "Naraindas Gehimal Transport Company" if any such firm existed at all. A. M. Qureshi has nothing to do with the firm and this written statement is filed under protest."

A. M. Qureshi meant, and the plaintiff understood him thus, to enter an appearance under protest within Order 30 rule 8 Civil P. C. and the matter was argued before me on that basis. Naraindas Gehimal has been served also as a partner by substituted service and is ex‑parte in the suit having failed to appear on the date mentioned in the summons and P. R. Sethna has also been served as partner but is likewise ex‑parte.

When the matter was fixed in Court for settlement of issues, it was contended for the plaintiff that as A. M. Qureshi had put in an appearance under protest and as the defendant firm had been properly served through two other partners, the plaintiff was entitled to prove his case ex‑pane against the defendant firm, and that if after the decree it became necessary to proceed against A. M. Qureshi personally as a partner in the defendant firm, the plaintiff could move under Order XXI, Rule 50 (2) when the question whether A. M. Qureshi was a partner at the material time would be decided. To this procedure, objection was taken for A. M. Qureshi and on his behalf it was contended that the issue whether he was a partner at the material time should be tried in the suit so as to enable him to defend the suit even as to merits.

It is therefore necessary to examine the provisions of Order XXX, Civil P. C. 1908. Rule 1 enables partners in a firm to sue or be sued in the name of the firm of which they were partners at the time of the accruing of the cause of action. Rule 3 (b) permits of service in a suit against a firm, upon "any person having at the time of service, the control or management of the partnership business" while rule 4 does away with the necessity of bringing upon the record legal representatives of a partner who has died before the institu tion or during the pendency of such suit. Rule 6 requires the partners sued in the name of their firm to appear individually but all subsequent proceedings are required nevertheless, to "continue in the name of the firm." The defence is put in for and in the name of the firm by a partner or partners jointly or individually, the decree is for or against the firm in the firm name and the assets of the firm are liable to satisfy any such decree. Rule 7 exempts appearance by a person who has been served as being in control or manage ment of the partnership business, "unless he is a partner in the firm sued," while rule 8 enables a person who has been served as a partner to appear under protest where he denies that he is a partner. The Code of Civil Procedure relegates. to rule 50 of Order XXI provisions of which order relate to execution of decrees and orders, the question of deciding the' personal liability of a person alleged to be a partner to satisfy a decree passed against the firm, so suggesting that that is the proper stage for the ascertainment of the personal liability of a partner to satisfy a decree against the firm. It has been submitted that these provisions show that a suit may be filed against a firm in its firm name and the firm may be served either through a partner who does not dispute that he is a partner or through a person in control or management of the partnership business, and a decree may follow against the firm and be even satisfied from the property of the firm, without there arising the need to decide whether a person protesting that he is not a partner is actually a partner or not, and that the need for decision does not really arise till the plaintiff seeks to recover the judgment debt from a person as a partner in the film against which there is an unsatisfied decree.

Now the very rule 8 which enables a person served as a partner to appear under protest denying that he is a partner says that "such appearance shall not preclude the plaintiff from otherwise serving a summons on the firm and obtaining a decree against the firm in default of appearance where no partner has appeared" and these words support the view which I take, that the appearance under protest is a matter, which affects only the service of the summons on the firm sued and that the suit might proceed in spite of and no,; withstanding it, to a decree against the firm if the firm has otherwise been served under Order XXX rule 3, Civil P. C.

It is now appropriate that I should trace the history of the provisions of Order XXX rule 8, Civil P. C, 1908. It appears from the judgment of Bankes L. J. in the case of Weir & Co. v. Mc. Vicar & Co. (1), that when the Rule Committee of the Supreme Court in England came in 1891 to frame Order XLVIII‑A rule 7 of the rules of the Supreme Court, it was well aware of Wills, J.'s suggestion made the previous year in Davies & Co. v. Audre & Co. (2), that it should alleviate by suitable amendment of Order XLII rule 10 what appeared to be "a hardship that a person who was served with a writ in an action against a firm, and who desired to dispute the liability of the firm should only be allowed to do so on the terms of his admitting the partnership, and that he should be put to his election which defence he would set up ;' but that the Rule Committee had not accepted that suggestion in the amendment of the Rules made in 1891 which introduced Order XLVIII‑A rule 7.

Till 1929 Order XLVIII‑A rule 7 was as follows :

"Any person served as a partner under Rule 3 may enter an appearance under protest, denying that he is a partner but such appearance shall not preclude the plaintiff from otherwise serving the firm and obtaining judgment against the firm in default of appearance if no partner has entered an appearance in the ordinary form."

In 1929 that rule was substituted by the following :

"7. Any person served as a partner under Rule 3 of this Order but who denies that he was a partner or liable as such at any material time may enter an appearance stating therein that he does so as a person served as a partner in the defendant firm, but who denies that he was a partner at any material time. Such appearance as long as it stands shall be treated as an appearance for the firm. If an appearance is so entered (a) the plaintiff may apply to set it aside on the ground that the person entering it was a partner or liable as such, or may leave that question to be determined at a later stage of the proceedings ; or (b) the person entering the appearance may apply to set aside the service on him on the ground that he was not a partner or liable as such ; or he may at the proper time deliver a defence denying either or both (L R (1925) 2 K B 127) his liability as a partner, (L R 24 Q B Div. 598) the liability of the defendant firm in respect of the plaintiffs claim. An order may on the application of either party at any time be made that .the questions as to the liability of the person served and the liability of the defendant firm may be tried in such manner and at such time or times as the Court or Judge may think fit."

It is therefore clear that Order XXX rule 8 .is based upon Order XLVIII‑A. rule 7, as it was prior to the 1929 amendment and therefore the decision in Weir & Co. v. Mc. Vicra & Co. (L R (1925) 2 K B 127), which is founded upon the rules as it then stood, applies to matters falling within Order XXX rule 8, Civil P. C, 1908. That case was followed by Rupchand A. J. C. in F. O. Jetha Devji & Co. v. F. O. Javhersing Harnamdas and others (26 S L R 228,231), and by Buckland, J. in international Continental Caoutchonc, Compagne v. Metha d Co., (I L R 54 Cal. 1057, 1061) these cases support the view I have taken of Order XXX rule 8, Civil P. C., 1908.

This state of the law causes a hardship such as was referred to in England by Wills, J. in Davies & Co. v. Audre Co. (L R 24 Q B Div. 598), and in India by Mcleod, C. J. in Vithaldas v. Hansraj (23 B L R 1249), and by Faiz Tyabji, J. in Chotumal Bulchand v. Allibhoy Mainooji, (A I R (1926) Sind 154) but the hardship such as it is remains in our law because no amendment of rule 8 of Order XXX Civil P. C., 1908 has been made although the rule 7 of Order XLVIII‑A of the Rules of the Supreme Court upon which it was based, was amended nearly twenty years ago so as to alleviate that very hardship. For the defendants this hardship was very greatly stressed, in this case, but I can do no more than merely indicate that that hardship has been already judicially noticed, but that it still remains for want of suitable amendment. The rules of this Court which were framed in 1945 have made no amendment to alleviate this hardship.

Since the defendant firm has been served otherwise than through A. M. Qureshi, that is to say through Naraindas Gehimal and P. R. Sethna who have been served as partners in the firm and are ex‑parte, and since the plaintiff wishes to prove the case against the defendant firm, I fig this case for ex‑parte proof on.

A. H. Order accordingly.

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