P (PLP)

THADANI, J.‑

This is an appeal from the decision of Lobo, J. in suit No 125 of 1940, in which he decreed the respondents suit with costs. The suit was instituted by the respondents, a partnership firm of C. Prabhudas & Co., carrying on business at Bombay, against the firm of Baharimal Jaggamal carrying on business at Karachi, for the recovery of a sum of Rs. 4,309-4‑3 in the following circumstances. On August 20, 1937 the appellants lied instituted a suit in the then Court of the Judicial Commissioner of Sind, being Suit No. 200 of 1937 for the recovery of a sum of Rs. 5,425 as damages for breach of certain contracts. The defendants in that suit were the firm of C. Prabhudas & Co., carrying oil 'business at Bombay and Bhavnagar. In due course, a decree was passed in favour of appellants in Suit No. 200 of, 133 for the sum of Rs. 3,249‑5‑0 and costs, and the appellant obtained a transfer of their decree to the High Court of judicature at Bombay‑ for execution. On March 20, 1940 the appellants took out execution and when, the bailiff of the Sheriff of Bombay threatened to levy attachment against the firm of C. Prabbudas & Co., at Bombay, the respondents paid a sum of Rs. 4,309‑4‑3 under protest; and took out a Chamber summons. At the hearing, of the summons, Blackwell, J , ordered the Sheriff to retain the sum paid by the respondents under protest 'of directed the respondents to file an appropriate suit a; Karachi. In due course, the respondents brought the present suit. The respondent's case was that the firm of C. Prabhudas & Co. of Bhavnagar is an entity quite distinct from the firm of C. Prabhudas & Co., of Bombay that whereas the Bombay firm was a partnership firm the Bhavnagar was a proprietary concerts owned solely by Prabhudas Ramji in Samvat 1993 the partners in the Bombay firm were Prabhudas Ramji and his brother Harilal Ramji in 1994 the partners in the Bombay firm oaf C. Prabhudas & Co., were Harilal Ramji, Prabhudas Rasnji, Parmanand Mohanlal and Ramji Amersi ; in Samvat 1995 the partners in the firm of C. Prabhudas & Co.; at Bombay were Prabhndas Ramji. Harilal and Ramji Amersi.. It was further contended by the respondents that the summons in Suit No. 200. of 1937 instituted by the appellants in the Court of the Judicial Commissioner of Sind was not served on the firm of C: Prabhudas & Co., of Bombay and that the decree passed in Suit No. 200 of 1937 was, therefore, a nullity. The respondents prayed. for the following reliefs ; (a) that it be declared that the decree‑passed lax Suit No. 200 of 1937 by the Court of the Judicial Commissioner of Sind at Karachi was not binding on them, and that tile same should be set aside, and that the appellants were not entitled to receive from the Sheriff of Bombay the , sum of Rs. 4,309‑4‑3 lying with him ; (6) that the defendants should be ordered to refund to the respondents the sum of Rs. 4,309‑4‑3 with interest thereon at six per cent. per annum from August 12, 1940 till payment, ‑and (c) costs of the suit. The appellants, on the other hand, maintained that the firm of C. Prabhudas & Co., was carrying on businsss at Bombay and Bhavnagar, and denied that the Bhavnagar firm of C. Prabhudas & Co., was a different entity to the Bombay firm of C. Prabhudas & Co,, they further contended that as the liability of the firm of C. Prabhudas & Co, carrying on business at Bombay and Bhavnagar had been determined by the decree in Suit No. 200 of 1937, the respondents were debarred from re‑agitating the question of their liability in the present suit if they were aggrieved by the decree in suit No 200 of 1937, the respondents should have appealed against it. On the pleadings, Lobo, J. framed the following issues ; (1) Did the defendants wrongly describe the firm of C Prabhu das & Co. (Covers para. 1 of the plaint in Suit No. 200 of 1937 of the Court of the Judicial Commissioner of Sind). (2) Were the plaintiffs liable to pay the amount of the decree in that suit ? (3) Is the plaintiff's firm different from the firm of C. Prabhudas & Co., at Bhavnagar ? (4) Was the plaintiff's firm served with the summons in Suit No. 200 of 1937 of the Court of the Judicial Commissioner of Sind? If not, what is its effect ? (5) Was there any dealing or privity of contract between the plaintiffs and the defendants ? (6) Can the Court go into other questions covered by the above issues 1 to 5 ? (7) Is the decree a nullity ? (8) Was the same obtained on misrepresentation ? (9) Is the suit not maintainable ?,(covers paras. 5 and 8 of written statement). (10) Can the prayer for leave be granted ? (Pare. 5 of the plaint and 6 of written statement). (11) Is the plaint in suit not properly stamped ? (12) To what reliefs are the plaintiffs entitled ? (13) What order should be made as regards costs ? (14) General. At the conclusion of the trial, the learned judge took the view that the firm of C. Prabhudas & Co., of Bombay was an entity entirely different from the firm of C. Prabhudas & Co., of Bhav?nagar and accordingly decreed the respondents' suit with costs. We think the learned judge erred in reopening the question of the liability of the firm of C. Prabhudas & Co., carrying on business at Bombay and Bhavnagar by reason of the decision in Suit No. 200 of 1937 which operated .as res judicata. It appears that along with the plaint in suit No. 200 of 1937 the appellants had filed an application under by which they sought to serve the firm of C. Prabhudas & Co., the provisions of Order XXX, rule 3, Civil Procedure Code, carrying oil, business at Bombay and Bhavnagar though their manager or any person having at the time of service management or control of busi?ness at Bhavnagar. The summons was sent by registered post and Ex. No. 121 is the acknowledgment pertaining to service, Lobo J. was of the opinion that service upon the firm of C. Prabhudas & Co., carrying on business at Bombay bay and Bhavnagar in Suit No. 200 of 1937 was not effected in accordance with Order XXX, rule 3, Civil Procedure Code, in that the defendant firm was served at Bhavnagar, a place outside British India, that such a procedure was not contemplated by the provisions of Order XXX Civil Procedure Code. Apparently the learned judge did not notice the description of the defendant from in the plaint in Suit No. 200 of 1937 wherein it was described as carrying on business at Bombay and Bhavnagar. We do not share the learned judge's view that a firm which carries on a business in British India, and has a branch outside British India, cannot be served under the provisions of Order XXX, rule

3. Civil Procedure Code, outside British India. Order XXX, rule 1, Civil Procedure Code enables institution of suits by and against partners in the name of the firm and the only re?quisite for the purposes of an application under Order XXX, rule 3, Civil Procedure Cede, is that the firm sued carried on business in British India when the cause of action arose. It is im?material where the summons is. served, whether in British India or outside British India, if in fact a partner in the firm sued is served. In this case the appellants had stated in the plaint in Suit No. 200 of 1937 that the firm of C. Prabhudas & Co. were carrying on business at Bombay and Bhavnagar. They sought to serve .the defendant firm which bad been property sued under the provisions of Order XXX, Civil Procedure Code at Karachi. Order XXX, rule 3, Civil Procedure Code says: " Where persons ors sued as partners in the name of their firm, the summons shall be served (a) upon anyone or more of the partners. It is common ground that after some one was served at Bhav?nagar, the person Who filed a written statement in Suit No. 200 of 1937 was Prabhudas Ramji. It is not disputed that Prabhudas Ramji was at all material times a partner in the firm of C. Prabhu?das of Bombay. In his written statement Prabhudas Ramji did not controvert the description of the firm of C. Prabhudas & Co., as carrying on business at Bombay and Bhavnagar. After pleading to the merits of the claim, Prabhudas Ramji asserted that tile firm of C. Prahbudas & Co. at Bhavnagar was different from the firm of C. Piabbudas & Co. of Bombay, and that the contracts in question were .made by the Bhavnagar firm. One of the issues framed in Suit No. 200 of .1937 was: " Is the suit against the defendant's firm at Bhavnagar bad ? (Covers para. 3 of the written statement). If so, what is the effect ?" Weston, J, who tried the suit disposed of this issue in these words: " On the point whether defendants do business within British India, the question is, I think, concluded by the heading on the notepaper used by defendants in their correspondence with plaintiffs. This note‑paper states that the head office of the firm C. Prabhudas, Iron Merchants is at Carnac Bunder, Bombay. It also states that branches of the firm are at Ahmedabad and Kundla. In view of these assertions made by defendants, it is not now open to them to plead or to prove that they do not carry on business within British India. The objection taker to the form of suit against defendant firm, therefore, is without substance.". We think the judgment of Weston, J. on this issue concludes the controversy arising but of the judgment of Lobo, J, in the pre?sent suit in which he held that the firm of C. Prabhudas & Co., of Bombay is a different entity to the firm of C. Prabhudas of Bhavnagar. Weston, J., in effect held that the firm of C. Prabhudas & Co., was carrying on business at Bombay and Bhavnagar' and passed a decree against it as described in the plaint and the decree passed against the firm of C. Prabhudas & Co. carrying on business at Bombay and Bhavnagar. In view of this finding of Weston, J., the, question of the constitution of the firm of C. Prabhudas & Co , was immaterial for the purposes of the institu?tion of a suit under the provisions of Order XXX, rule I, Civil Procedure Code, the constitution of the firm of C. Prabhudas & Col., was material only in execution proceedings. Our conclusion, then, is that hobo, J. could not go into the question of the constitution of the firm of C. Prabhudas & Co., of Bombay and Bhavnagar in the present suit in view of the decision of Weston, J. in Suit No. 200 of 1937. The firm of C. Prabhu?das & Co., of Bombay is admittedly a partnership firm, in which Prabhudas, Ramji is admittedly a partner. We could accordingly set aside the judgment and decree of the trial Court and dismiss the respondent's suit with costs. The appeal is allowed with costs on the respondents. JUDGMENT CONSTANTINE. J.‑

The difficulty in deciding this appeal arises from the brevity of Weston, J.'s judgment. , He had before him inter alia, three issues: "

10. Is the suit against the defendant's firm at Bhavnagar bad ? (Covers para. 8 of the written statement). If so, what effect ? ? Paragraph 8 was: " It is further submitted that the firms at Bhavnagar and Bombay are different and the contracts were with the Bhavnagar firm only, and the suit in the present form is bad." "

11. Are the firms at Bhavnagar and at Bombay constituted of different partners ? If so, what is the effect ? "

12. Whether the defendant's firm at Bhavnagar or at Bombay or both are liable ? Prabhudas had signed the written statement as " proprietor of the defendant's firth ", but without specifying what firm. Weston, J.'s judgment contains the following relevant pas?sages : The defendants‑ 11 claimed that the firm in their (defendant's) name at Bhav?nagar was different from the firm in their name at Bombay and that therefore a suit against them could not be brought in the name of the firm at Bhavnagar as Bhavnagar is not within British India." " On the point whether defendants do business within British India, the question is I think concluded by the headings on the note‑paper used by defendants in their correspondence with plaintiffs. This note‑paper states that the Head Office of the firm (Prabhudas, Iron Merchants), is at Carnac Bunder, Bom?bay. It also states that branches of the firm are at Ahmed?abad and Kundla. In view of these assertions made by defendants, it is not now open to them to plead or to prove that they do not carry on business within British India. The objection taken to the form of suit against defendant firm, therefore, is without substance:' Lastly, he allowed a decree "Against the defendant firm as described in the heading of the plaint, i.e., father of Prabhudas & Co. carrying on business at Bombay and Bhavnagar.' The plaint of the respondents was inartistically worded; but Lobo, J. considered that its substance was for relief on the ground that the decree was not against them. He said it was not denied that the summons in Suit No. 200 had not been served on the firm at Bombay or on any partner. We are not, however, here concerned with an ex pane decree, as was the case in Goculdas v. Dilsukhram A. I. R. 1943 Sind 188: Prabhubas, a partner of the respondents, made an appearance and that appearance taken in combination with the heading of the plaint and issues 10 and 11 was an appearance on behalf of the respondents: from issues 10 and 11 it is clear that Prabhudas admitted he was a partner of the respond?ents. The point was not considered by Lobo, J. who thought that the defective service was in itself sufficient to prevent the respond?ents from being represented. Against whom was Weston, J.'s decree passed the Bhavnagar concern, the Bombay concern, or both?. The main passage in his judgment is a finding of estoppel against the defendants preventing them from pleading that they do not carry on business within British India, and thus a finding that the form of the suit is not bad. But the decree is passed against the firm as described in the plaint. The estoppel is based. on the use of letter‑heads, and it was the Bhavnagar firm which used those letter‑heads. On the other hand, Prabhudas who ran the concern at Bhavnagar was the partner of the Bombay firm and was acting in a transaction within the scope of his apparent authority as a partner in the Bombay firm. Had Weston, J. wished to .exonerate the Bombay firm, he would have deleted the words "and Bombay" from his des. cription of the cefendants against whom he allowed the decree. The word "firm" in the singular may have been used in this passage, because Weston, J. was making zoo distinction between the firms. On the whole, therefore, I consider that the decree applied to the Bombay firm who were duly represented by their partner Prabhudas. I, therefore, agree with the order of my learned brother. Appeal allowed.