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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 268 of 1960.

Appeal from the judgment and order dated September 5, 1958, of the Patna High Court in Misc. Appeal No. 252/55. A. V. Viswanatha Sastri, Yogeshwar Prasad and U. P. Singh, for the appellant.

G. S. Pathak, Rameshwar Nath and S. N. Andley, for the respondents.

1962. November 13. The judgment of the Court was delivered by SHAH, J.-M/s. johri Mal Prahald Rai-hereing after referred to as 'the plaintiffs'-commenced an action against M/s. Tirhut Umbrella Works (a firm carrying on business at Laheriasarai in the State of Bihar) in the City Civil Court, Bombay, for a decree for Rs. 20,320/- with costs and interest. Summons of the suit was served upon one Gajendra Narain Singh-hereinafter referred to as 'Singh'-at Road 8, R Block at Patna (Bihar) as a partner of the defendant firm. Mr. D. B. Tilak an advocate who was engaged by Singh, filed on April 22, 1953 in the Court a Vakalatmama signed by Singh authorising him to act, appear and plead in the suit. A chamber summons for directions for trial of the suit as a commercial cause was thereafter served on Singh. On September 9, 1953 Mr. Tilak a, advocate for Singh addressed a letter to the Attorneys of the plaintiffs requesting them to consent to an "adjournment of the x x x suit" to enable Singh "'to file his written statement." By consent of the advocates the chamber summons for directions stood adjourned by order of the Court for a fortnight. When the chamber summons for directions was taken up for hearing on September 24, 1953 Mr. Tilak informed the Court that his client Singh claimed that he was not a partner of the defendant firm, and orally prayed for an order permitting withdrawal of the appearance filed in Court. The Court declined to accede to the oral request and directed that appropriate proceedings to withdraw the appearance may, if so advised, be taken by Singh. The Court directed that the suit be transferred to the list of commercial causes and gave directions for the progress of the suit. When the suit was taken up for hearing before the City Civil Court on November 27, 1953 Mr. Tilak again appeared and submitted that his client on whom summons was served in the suit, was not a partner of the defendant firm and prayed that he be allowed to withdraw the appearance which was filed without protest. The Court rejected the application for leave to withdraw the appearance and also rejected the application of Mr. Tilak for an adjournment of the suit. Mr. Tilak then withdrew from the suit with leave of the Court, and the suit was heard ex parte. The Court recorded the evidence of a witness for the plaintiffs and admitted certain correspondence tendered by the plaintiffs, and decreed the suit as prayed.