Patna High Court
Rameshwar Prasad Golwara And Ors. vs Keshab Prasad Bhagat And Ors. on 19 February, 1962
Equivalent citations: AIR1962PAT360, AIR 1962 PATNA 360
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT N.L. Untwalia, J.
1. This is an appeal by the plaintiffs from the decision of the learned Additional Subordinate Judge, 4th Court, Patna, dated the 31st of March, 1958, almost dismissing their sui:: for declaring that the preliminary and final decree passed in favour of defendant No. 1 (respondent No. 1) in Title Suit No. 65 of 1950 by the Subordinate Judge of Birbhum in West Bengal arc illegal and for setting them aside.
2. The plaintiffs' case is that 'plaintiffs Nos. 1 to 8 are members of a joint family governed by the Mitakshara school of Hindu Law, and plaintiff No. J, is the head member and karta of the family.' Their further case is that the ancestral profession, of the plaintiffs is trade. They have been running a Gaddi in the name of Dinanath Triloki Nath at Maroofganj Patna City for the last eight years' which firm is the 9th plaintiff in the. present. In the said Gaddi, defendant No. 3 worked as dandidar and defendant No. 4 had been entrusted with the work of making demands for realization of dues. Defendant No. 1 is the resident of Malharpur Bazar in the district of Birbhum and deals in cloth. On enquiry it was learnt that he filed a title suit, namely. Title Suit 65 of 1950 in the court of the Subordinate Judge at Suri in. the district of Birbhum against the firm Dmanath Trilokinath for rendition of accounts and fraudulently obtained an ex par'e preliminary decree on 15-3-51. It also appears that he got the plaint amended after passing of the said decree and made prayer for inclusion ot plaintiffs 1 to 8 in the category of defendants, which prayer was allowed on 3-11-51, and the said plaintiffs were placed in the category or defendants.
NO notice or summons was ever served on any of the plaintiffs of this suit or on the proposed guardian of the minors, and, by suppressing all notices and summonses, defendant No. 1 obtained a fraudulent final decree also on 22-7-52. The plaintiffs have further made out a case that the basis of the claim of defendant No. 1 in the said title suit was wrong and false; that so gur or molasses of the said defendant was ever brought in the Arhat of the plaintiffs or sale; that no contract was entered into between the plaintiffs and defendant No. 1 for its sale: and that the plaintiffs neither sent defendants 3 and 4 to defendant No. 1 nor did they authorise either of them to enter into any contract on their behalf. According to the plaintiffs' case, plaintiff No. 8 was a minor even on the date of the insitution of the Present suit but defendant No.1 got the final decree passed as against him as a major. They also asserted that the Suri Court had no jurisdiction to entertain the above title suit as no part of the alleged cause of action had arisen within its jurisdiction.
3. Defendant No. 1 in his written statement has refuted the allegations of the plaintiffs as against him and in respect of his claim and decree.
4. The learned Additional Subordinate Judge has held (i) that there is positive proof of the fact' that the consignment of 664 (SIC) of molasses 'was taken delivery of on behalf of the firm Dinanath Trilokinath by the admitted servant of the above firm and that there is absence of any reliable evidence to show that there was any contract regarding this consignment between defendant No. 1 on one side and defendants 3 and 4 in their personal capacity on the other side,' that 'there was an agreement for the consignment in question between the firm Dinanath Trilokinath and defendant No. 1 through the mediation of Sarju (defendant No. 3) acting only as a servant of the above firm' that 'the bargain was struck by Sarju at the place of defendant No. 1' and that the Suri Court had jurisdiction to entertain the aforesaid title suit and pass the decrees; (ii) that there wag no falsify of claim in the suit filed in Suri Court and that the preliminary and final decrees were duly passed and no case of fraud has been substantiated by the plaintiffs and lience the decrees are not liable to be set aside; and (iii) that plaintiff No. 8 was a minor and the final decree passed in the said title suit shall not effect or bind his interest.
5. Mr. Lalnarayan Sinha appearing in support of the appeal did not accept the findings of fact arrived at by the learned Additional Subordinate Judge as correct, but neither did he advance any argument to assail them nor did he make out any point challenging the genuineness of the claim of defendant No, l or in regard to the alleged commission of fraud by him in obtaining the decrees or the jurisdiction of the Suri Court to pass them. Apropos the service of summonses and notices in the said title suit he did not advance any argument of substance challenging the preliminary decree passed against plaintiff No. 9, the joint family firm, as he conceded that at best on the facts established it was a case of irregular service and the ex parte decree against the the firm could not be set aside for want of sufficient materials to substantiate the case of fraud.
But his main. argument is that the preliminary decree against the joint family firm was void inasmuch as a joint family cannot be said to be a person carrying on business in the assumed name within the meaning of Order 30 Rule 10 of the Code of Civil Procedure hereinafter referred to as the Code; in any event, it could not embrace within its ambit the signers in the family, namely, plaintiffs 4 to 8. That being so, counsel further submitted, the final decree should be declared as void and a nullity for the simple reason that the notices, which are said to have been served upon plaintiffs 1 to 8 and in case of minors on their guardians, were served asking them to show cause as to why they should not be added as parties in the suit but: no notice or summons was either issued or served upon them after they were so added on 0-11-51 and before the passing of the final decree on 22-7-52; hence the final decree passed as against them without issue of any summons in the suit was without jurisdiction and void.
6. Before I discuss and decide the points, which are more or less points of law only, urged on behalf of the appellants, I may state a few more facts. Defendant No. 1 filed the plaint in Title Suit 65 of 1950 on the 28th of July 1950 in the Court of the Subordinate Judge of Birbhurn at Suri impleading 'Dina Nath Tri-loki Nath a Hindu joint family firm carrying on business at Marufganj in Patna City, District patna Chouki patna' as would appear from Ext. 1 the plaint of the suit. The order sheet of the title suit (Ext. G) shows (vide order No. 5 dated 11-12-50) that notice by registered post was served and acknowledgment receipt was received. Nobody appeared on behalf of the firm. In that order it was further directed that notice of the date of hearing of the suit be published in the Calcutta Gazette. Order No. 8 dated 14-2-51 shows that, as directed, notice was published in the Calcutta Gazette. Yet nobody appeared on behalf of the firm. Eventually, the ex parte preliminary decree was passed on 15-3-51.
On 16-4-51 defendant No. 1 filed a petition in the title suit praying for addition of plaintiffs 1 to 8 as pariy defendants in that suit. Notice was directed to be issued on the original defendant firm (plaintiff No. 9 of this suit) as also on the persons sought to be added. Notice was returned unserved. Thereafter notices were issued and served on the persons concerned by registered post. Defendant No. 1 was directed to deposit certain sum towards cost of publication cf notice in the Bihar Gazette. Accordingly, notice was published in the Bihar Gazette. Ultimately the order adding plaintiffs 1 to 8 as party defendants in the title suit was made on 3-11-51 (vide order No. 25) on failure of any of the plaintiffs of this suit to appear in the title suit. After that defendant No. 1 was directed to put in requisites for appointment of guardian-ad-litem for the minors added (namely plaintiffs 4 to 7, as plaintiff No. 8 who has been described as a minor, was impleaded as a major defendant in the title sui'). The pleader guardian ad litem appointed on the 10% of November, 1951, gave notice to their natural guardians. On 29-2-52, a pleader commissioner was appointed to ascertain the accounts in pursuance of the direction given in the preliminary decree. He also gave registered notices to the plaintiffs (vide Exts. C/5 to C/12) but the notices were refused. Eventually the final decree was passed on 22-7-52 on the basis of the pleader commissioner's report submitted On 5-7-52.
7. Exts. 6/b and 6/c are copies of summonses with service reports showing service of summonses in the title suit before the passing of the preliminary decree. Ext. H is an extract from the Bihar Gazete showing publication on 22-8-51 in the following terms of notice in Title suit 65 of 1950 to all the 9 plaintiffs including those who were eventually made defendants in the suit:
"Whereas the abovenamed plaintiff has instituted the above suit against the defendants for rendition of accounts and the claim of the suit has at present been tentatively fixed and laid at Rs. 2099/-, the details whereof are given in the plaint of the aforesaid suit; And whereas the defendants are alleged to have acted as commission agent of plaintiff for selling Gur (molasses) and they having failed to render account in terms of the contract the suit was brought against them and the defendants have been asked to render accounts and notices have been served upon the defendants by registered post with acknowledgment due as a matter of caution and duly acknowledged by defendants but none appeared to contest the suit, as a matter of additional caution it is hereby ordered that if the defendants do not appear on or before the 10th September 1951 the suit will be heard ex parte in the absence of the said defendants. The suit has already been decreed preliminary on 5th March 1951 against defendant No. 1 and the other defendants named above have been sought to be made party in suit by plaintiff.'
8. Order 30 Rule 10 of the Code reads thus-
"Any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a a firm name; and, so far as the nature of the case will permit, all rules under this order shall apply."
9. Mr- Lalnarayan Sinha, On the authority of Chidambaram Chettiar v. National City Bank of New York, AIR 1936 Mad 707 and Munshilal and Sons v. Modi Bros. 51 Cal WN 563 submitted that in the historical background of this provision of law copied from Order 48A Rule 11 of the Supreme Court Rules in England and embodied in the Indian Code, it must be held that the word 'person' means one person only and cannot include more than one person. As stated above, he further submitted that, in any event, minors in a joint Hindu family cannot be said to be persons carrying on business in the name of the joint family firm and the fact that their natural guardians were carrying on the business cannot be held to mean that they were so carrying on the busiess. I am not impressed by this argument.
In some of the English cases, as pointed out by Das, J., as he then was in 51 Cal WN 563, there have been obiter dica with reference to the previous corresponding provision of the English rules of procedure, that the phrase 'any person' means one person. Whatever may be the position in England, it is quite dear to me that the rule was embodied in the Indian Code by the Legislature, which must be fully aware of the Indian conditions and specially of much too common a practice of numerous joint Hindu families in India carrying on. business in an assumed firm name. The learned Judge, as appears from his exhaustive judgment, in 51 Cal WN 563 (supra) was conscious of his lac". The mere fact that in Rule 1 of Order 30 of the Code a plural number has been meant; by using the phrase 'two or mare persons' is no ground to hold that the phrase 'any person' must be confined to a single person.
It is to be noticed that Rule 1 essentially deals with a case of partnership which cannot be constituted by a single individual; there must be two or more persons to constitute a partnership. While, on the other hand, Rule 10 is wide enough to cover within its ambit a single person carrying on a business in a name or style other than his own name, two or more persons carrying on business in a name or style other than their own name either as a group of persons or as members of a joint Hindu family. There is nothing repugnant in the subject or context to exclude the application of the principles of law embodied in Section 13 of the General Clauses Act nor is there anything, in my opinion, to enable me to hold that the definition of the word 'person' given in Section 3(42) is not applicable to the same word used in Rule 10 of Order 30 of the Code.
I am further of the view that minors tor whose benefit the joint family business is carried on by the adult coparceners of the family are not excluded from the word 'person' in Rule 10, and for two reasons. Firstly, as has been held in the two Bench decisions of this Court in Srikant Lal v. Sidheshwari Prasad Naran Singn, AIR 1937 Pat 455 and Alekh Chandra v. Krishna Chandra, AIR 1941 Pat 596, although a Hindu joint family is not a legal entity in the strict sense of the term, it is a legal unit and a person for many purposes; hence the word 'person' in Rule 10 would mean the joint family unit with its karta as the head of the unit carrying on the business. Secondly, it is also possible to take the view that the phrase 'any person' would mean and include the karta carrying on the business on behalf of the joint family in a name or style other than his own name. It is a well-established principle of Hindu Law that a karta in his representative capacity can sue and be sued as. such, although not expressly described as such. Looked at from any point of view, it is clear to me that the suit filed against plaintiff No. 9 admittedly a joint family firm belonging to plaintiffs 1 to 8 was a suit against the whole joint family unit including the minors or, in any event, was a suit against the karta, plaintiff No. 1, the admitted karta of the family. That being so, the preliminary decree obtained against the joint family firm in the first instance was perfectly legal and valid. This view is further supported by a recent Bench consisting of Ramaswami C. J. and Kanhaiya Singh J.) decision of this Court in. R. J. Mohammed Yakub Saheb v. M/s Dipa Sahu Deoki Prasad, AIR 1959 Pat 200 and a Pench decision of Kerala High Court in Tulsidas Mulji v. Ebrahimjee, AIR 1960 Kerala 75.
10. In the Madras case--AIR 1936 Mad 707--the facts were that one Muthuveerappa Chetty, a member of the Nattukkottai Chetty community, was carrying on money-lending business under the name of 'R. M P. M Chettiar Firm'. He died in 1931, leaving his undivided sons (the appellants) all four of whom were and had been minors. Their mother, one Meenakshi Achi, continued the business on their behalf with the aid of an agent, by name Veerappa Chetty and the suit debt was incurred in December 1932, in the course of that business. The suit was then filed and attempts made to effect Personal service of the summons on the agent having proved unsuccessful, an order for substituted service was obtained, copies of the summons were affixed and the decree was obtained against R. M. P. M. Chettiar Firm. Their Lordships of the Madras High Court held, following the English cases) that Rule 10 is applicable only to the case of a single individual. This is contrary to the view expressed by the three Bencb decisions of this Court referred to above which are not only binding on me but I am also in respectful agreement with them. A further observation in this decision which was referred to by the learned Government Advocate is to the following effect;
"It is further open to doubt whether the rule can apply to a minor at all, when what is alleged is that the business is carried on On his behalf by a guardian. The rule contemplates 'any person carrying on business', and as we have said, it is doubtful, whether a minor alleged to be trading through his guardian answers this description."
With reference to the facts of the Madras case, it is to be noticed that there was no karta or adult coparcener in the family carrying on the joint family business. In that situation, it could be argued that the carrying on of the business of the minors alone by their, guardian could not be said to mean the minors carrying on the business. But, for the reasons stated above, I have no doubt that if the join; family con-sits of major and minor persons, the latter are not excluded from the phrase 'any person' occurring in Rule 10 of Order 30 of the Code, in AIR 1941 Pat 596, Fazl Ali, J., as he then was, delivering the judgment of the Bench after referring to the Madras case, has said-
"With that view J agree subject to this qualification only that there is nothing to prevent this rule being applicable to those cases where more persons than one carry on business in an assumed name, though strictly speaking they are not partners. Such a case cannot arise in England, but in India the members of a joint family who do not form a contractual partnership in the strict sense of the term do often carry on business in an assumed name. In AIR 1937 Pat 455 while dealing with the position or the managing member of a joint Hindu family, I expressed the view that a joint Hindu family being a legal person according to Hindu law lawfully represented by and acting through the managing member or head thereof is included Ordinarily in the term a 'person'." His Lordship has further observed-
"But the decree was against Padam Sahu and Co., and this, I have already said, was a compendious name for the entire group of persons on whose behalf business was carried on with the decree-holder. I think therefore that the decision of the learned Subordinate Judge must be upheld with regard to all these persons."
In Lachhman Das v. Commissioner of Income-tax, AIR 1948 PC 8, Mr. M. R. Jayakar delivering the judgment of the Board has observed-
"Without accepting the view of some eminent Hindu Judges that a Hindu Joint family is, in its true nature, a 'Corporation' capable of a continuous existence, in spite of ileeting changes in its constitution, it is enough to state that for the purpose of such a transaction effected through the medium of its karta, it has been, for a long time past, regarded as an entity capable of being represented by its manager."
in AIR 1959 Pat 200, it has been held-
"The position in law, therefore, is that a Hindu joint family trading concern, though not a firm in the legal sense, may be sued in its assumed name of the business under the provisions of Order 30, Rule 10, Code of Civil Procedure, ...
The Bench of the Kerala High Court in Tulsidas- Mulji's case, AIR 1960 Kerala 75 has follow in its true nature, a 'Corporation' capable of a Bench decision of the Calcutta High Court in Jamunadhar Poddar Finn v. Jamunaram Bhakaf, AIR 1944 Cal 138, contrary to which S.R. to Das J., sitting singly, held in 51 Cal WN 563. They did not accept the Madras view.
11. In AIR 1944 Cal 138, the Bench of the Calcutta High Court has held, following the Patna view,--
''We do not find either anything in the context or subject which would lead to us to hold that Rule 10 contemplates the case of a single individual only, and not of any individuals. Of course where more than one individual trade under a firm name or under any other assumed name and form a partnership resting on contract the case would come under Rule 1 of Order 33, but where they do not form, a partnership we do not see any convincing reason why they should not come within Rule 10."
12. I, therefore, hold that, in substance the suit of defendant No. 1 and the preliminary decree passed therein against the 9th plaintiff, namaly, the firm Dinanath Trilokinath, were against the joint Hindu family consisting ot" plaintiffs 1 to 8. In that view of the matter, the second point urged by the learned Covernment Advocate loses much of its force. It is, no doubt true that the notices, which were issued and said to have been served individually upon plaintiffs 1 to 8, were notices asking them to show cause as to why they should not be added as parties to the suit, and, after they were so added, no fresh summonses issued to them. But he final decree cannot be bad and invalid on that account. On their failure to appear and show cause, they were added as party defendants in the plaint itself and consequently in the preliminary decree. I have seated above with reference to Exts. C/5 to C/12 that the pleader commissioner appointed by the Subordinate, Judge of Birbhum to take accounts gave notices individually to these plaintiffs after their being added as parties in the suit, and yet they failed and: neglected to appear and raise any objection, in my opinion, they were not new parties, as in substance they were included in the compedious name of their joint family firm Dinanath Triloknath. If, for the sake of detailed, definite descriptions, they were added later on in the proceeding and final decree was obtained against them, on the facts and in the circumstances of this case, it cannot be held that the said decree is void and nullity because no fresh summons was issued in. the suit. I may also add that the terms of the notice published in the Bihar Gazette (Ext H) quoted in the earlier part of my judgment constructively gave notice to them that-
"........ the suit will be heard ex parte in the absence of the said defendants."
and this was followed by the statement in the notice that-
"The suit has already been decreed preliminary on the 5th March 1951 against defendant No. 1 and the other defendants named above have been sought to be made party in The suit by plaintiff."
In Ramprasad Shivlal v. Shrinivas Balmukund, AIR 1925 Bom 527, the plaintiff filed a suit to recover certain money on the basis of 3 hundis. In the first instance, in the plaint the description of the defendant was 'Shivlal Ramprasad a firm doing business as merchants at Ahmedabad' and thereafter, when it was discovered that Shivlal Ramprasad was a joint Hindu family doing business under that name arid that the provisions of Order 30 would not apply (this view of law cannot be accepted as correct now for the reasons stated above), the title of the plaint was amended by substituting the names of the members of the family for the firm's name 'Shivlal Ramprasad.' It was contended that the provisions of Section 22(1) of the Indian Limitation Act applied and the suit was barred as the suit must be deemed to have been instituted against the defendants when the plaint was amended. Macleod C. J. delivering the judgment of the Bench agreed, with the view of the trial judge that there was not an? addition of parties, but only a substiution in order to correct a misdecaption."
13. I wish to make it clear that any of my observations in this judgment will not affect the decision of the learned Additional Subordinate Judge holding that the decree in Title Suit 65 of 1950 will not bind plaintiff No. 8 or his interest, for the simple reason that there is no cross-objection by defendant No. 1 against that portion of the decision; moreover, the decree was obtained against him describing him as a major although he was a minor at the time of the passing of the final decree in the title suit.
14. For the reasons given above, I find there is no substance in this appeal. It is accordingly dismissed with costs to be Paid by the appellants to defendant-respondent No. 1.