P L D 1962 (W (PLP)

2. The relevant facts are as follows. Respondent Loku Mal filed a suit (No. 114 of 1956), in the Court of the Sub-Judge, Quetta, claiming that he was a partner in the defendant-appellant firm (Messrs Ahmad Din & Co.) and sought a rendition of accounts on that basis. A preliminary decree was passed ex parte against the defendant which was later set aside on the application by the defendant firm. In the meanwhile, while the suit was still proceeding, the plaintiff-respondent filed an applica tion under the Provincial Insolvency Act to be declared as an insolvent. It appears that he was so adjudged on the 3rd of November 1959. Thereupon the appellant filed an application before the trial Judge under Order XXII, rule 8, Civil Procedure Code, for the dismissal of the plaintiff's suit on the ground that having been adjudged an insolvent the plaintiff-respondent was no longer competent to maintain his suit. This plea found favour with the trial Judge (Qazi Muhammad Husain, Sub- Judge, Quetta), who dismissed the suit on the 17th of May 1961. The reasons given by him were that on the insolvency of a person, all his assets and liabilities devolve on his creditors and thereafter a suit can be maintained on his behalf or defended for him by an official receiver, official assignee, creditors or the insolvency Court, and not by the insolvent himself.

3. The respondent Loku Mal preferred an appeal against the order of the Sub-Judge, Quetta, in the Court of the District Judge, Quetta (Sayyed Tafazzul Husain). The appellate Judge reversed the decision of the trial Court and directed that the case against the firm should proceed. He came to the conclusion that the trial Court had misconstrued the provisions of Order XXII, rule 8, Civil Procedure Code, which were not attracted to the case in hand, as no assignee or receiver had been appointed by the Insolvency Court, and therefore the question of calling upon the assignee or the receiver to continue the suit did not arise. He further held that the plaintiff's suit was one for rendition of accounts, which may or may not result in a decree and a realizable asset. The subject-matter of the suit, according to the learned District Judge, was not an asset or property falling within the meaning of section 2, clause (d) of the Provincial Insolvency Act, which defines "property" as "including any property over which or the profits of which any person has a disposing power which he may exercise for his own benefit." 4, Before me the learned counsel for the defendant-appel lant has challenged the judgment of the District Judge on several grounds. In the first place, he has argued that the entire proceedings taken by the District Judge in appeal stand vitiated for the reason that the service on the appellant firm was not effected as required by law. He has argued that the appeal by the respondent before the District Judge was not competently instituted as he had been adjudged as an insolvent and was, therefore, dead in the eye of law for maintaining any suit, pro ceedings, or for that matter any civil action in a Court of law. This objection has the same basis as the one urged against the competency of the suit in the trial Court maintained by the insolvent plaintiff. If he was unable to continue his suit, obviously he would be incompetent to institute or pursue his appeal.

5. To revert to the first objection of the learned counsel for the appellant that the service on the firm was not properly effected in the appeal proceedings before the District Judge, I feel persuaded to accept this contention. The appeal was instituted against the respondent as a firm in the same manner as it was sued in the beginning in the trial Court. The firm consists of more than one partner, as admitted before me by the learned counsel for the parties, although a list of partners is not available on the record as neither party applied to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in the defendant firm, as required by Order XXX, rule 1, Civil Procedure Code. Now, where the partners of a firm are sued in the name of a firm, there is a special provision for service of the defendants in such cases as contained in Order XXX, rule 3, Civil Procedure Code. Under Order XLI, rule 14 of the Civil Procedure Code, notice on the respondent in an appeal is to be served in the same manner as provided for the service on a defendant of a summons to appear and answer the suit against him, and all the provisions applicable to such summons and to proceedings with reference to the service thereof apply to the service of such notice on the respondent. It is plain, therefore, that service on a firm which is a respondent in an appeal is to be carried out under the provisions of Order XXX, rule 3 of the Civil Procedure Code, which may here be quoted for facility of reference: "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 Pakistan 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 British India: "Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institu tion of the suit, the summons shall be served upon every person within Pakistan whom it is sought to make liable." It is a well known principle of jurisprudence that no persons shall be condemned unheard or without having had an opportu nity of being heard. Therefore, proceedings against a party taken behind its back and without a proper and a legal notice having been served on it lack legal sanction. Service of notice is not merely a matter of form to be carried through without due care and attention and regardless of the provisions of law, which prescribe the mode in which the service is to be effected on a party arraigned before the Court. I should consider that particular care is needed on the part of the Courts in the matter of service in cases where constructive or proxy service is deemed to be a good service under the law, such as in the case of firms, where anyone of the partners may be served in token of the service of all of them, or where service upon any person having, at the time of service, the control or management of the partnership business at the principal place where the partnership business is carried on will be construed as good service on all the partners of the firm. It seems to me plain from the provi sions of Order XXX, rule 3 of the Civil Procedure Code, reproduced above, that service can be effected in the case of a defendant or a respondent firm by the service of summons either (a) upon any one or more of the partners, or (b) on the person who has the control or management of the partnership business at the principal place of its business. But in either case the "direction of the Court" has to be obtained as manifested in the expression "as the Court may direct", contained in Order XXX, rule 3 of the Civil Procedure Code, which, to my mind, qualifies both clauses (a) and (b) of the aforesaid rule. The object of the rule appears to be that before process is issued for the service of a firm, a direction must be obtained from, the Court as to the manner of service, and the Court should issue the direction taking into account the situation, of its different partners vis-a-vis the firm or of the person who may be alleged to be in control or management of the partnership business at the principal place at which the business is being carried on, the anxiety in either case being that service is effectively made to be accepted as a presumptive notice to all the partners and is not carried out in a sham and a routine manner. The learned counsel for the appellant has drawn my attention to a judgment from the Sind Chief Court which favours this view. In Gaculdas Mahadev v. Beharimal Jaggamal (Firm) (A I R 1943 Sind 188), Lobo, J., observed as follows :- "In order to effect proper service of a notice on a firm the directions of the Court should be obtained in the first instance as provided in Order XXX, rule 3, and service should be effected in the manner provided in Order XXX, rule

3. Compliance with the provisions of Order XXX, rule 3, is not a mere formality. The effect of service under Order XXX, rule 3, is to bind individual members of a firm who have not been personally served and, therefore, strict compliance with the provisions of Order XXX, rule 3, alone will justify a Court in holding service to be good." I am in respectful agreement with this view, and applying it to the facts of the instant case I consider that service on the appel lant firm was not at all legally effected. The appeal before the District Judge was registered on the 1st of July 1961, when a notice was issued and the record summoned for the 19th of July 1961. It came up for hearing on the 19th of July 1961, when the following order was recorded :- "Present :

Appellant in person. The notice, which was sent on 6th July 1961, to the District Judge, Jacobabad, for service on the respondent, has not been received back. Await for a week. To come up on 26th July 1961. Record has been received." On the 26th of July 1961, the Court ordered "The notice which was issued against the respondent has been received, which shows that the respondent was served on 12th July 1961, and he failed to appear on the fixed date, i.e., 19th July 1961. Proceedings shall be ex parte against him. To come up for the arguments on 2nd August 1961."

6. As already stated above, the judgment was delivered ex parte against the defendant firm on the 2nd of August 1961. As regards the observation in the order dated the 26th of July 1961, mentioned above, that the respondent was served on the 12th of July 1961, I find that the notice in question was issued in the name of Messrs Ahmad Mian & Co., Government Contractor, Jacobabad, without any direction having been obtained from the Court as to the mode of service nor as to the individual on whom the service was to be made. There is an endorsement in Sindhi on the book of this notice purporting to be under the signatures of one Ram Chand, Munshi of Ahmad Mian. The endorsement is to the effect that Ahmad Mian had left for Lahore on an urgent work and it was not known when he would return. The bailiff, who was detailed to procure service of the respondent, submitted his report to the Court which bears the same date, viz., the 12th of July 1961, unaccompanied, however, by any affidavit. This report is also in Sindhi, stating that Ahmad Mian was in Lahore according to the information given by his Munshi, and that a copy of the summons had been affixed on his place of residence. Apart from the consideration that no direction was obtained from the Court which issued the notice as to how the respondent firm was to be served in this case, I feel that it is difficult to say in this case that even Ahmad Mian, one of the partners of the firm, was properly served. There is nothing to show that the person who alleged himself to be the Munshi of Ahmad Mian and who made the endorsement on the summons was in fact an agent of Ahmad Mian, entitled to accept service on his behalf. Nor can the effort of the bailiff in effecting substituted service by affixing a copy of the summons on the habitation of Ahmad Mian be blessed with legal sanctity under Order V, rule 17 of the Civil Procedure Code. Substituted service could be considered valid by the action as adopted by the bailiff if Ahmad Mian or his agent or some other person on his behalf had refused to sign the acknowledg ment, or where the bailiff had, after using all due and reason- g able diligence, not found the defendant, and there was no agent empowered to accept service of the summons on his behalf, nor any other person on whom service could be made. There is no indication in this case that all the requirements of Order V, rule 17, were satisfied, leading the bailiff to resort to substituted service by affixing a copy of the summons on the residence of Ahmad Mian. I am constrained to say that the leered District Judge in this case did not at all apply his mind to the question of valid service either at the outset when notice was issued to the firm or at the time when he proceeded to hear the appeal ex parte against the firm by reaching the very unsatisfactory conclusions, with no evidence to support that conclusion, that legal service had been effected on the firm. The order of the District Judge, therefore, has to be set aside on the ground that all the proceedings taken by him were illegal in the absence of a proper and a legal notice on the appellant firm. I set aside) his order and remand the appeal for a fresh decision by the present District Judge of Quetta, who has succeeded Sayyed Tafazzul Husain, who has been transferred. The learned District Judge will fix a date for hearing of the appeal after due notice to both the parties, and in the case of the appellant firm in due compliance with the provisions of Order XXX, rule 3 of the Civil Procedure Code. He will give his own decision on all the points that may be raised in the appeal.

7. The learned District Judge will have to address himself to the question of the competency of the appeal before him filed by Loku Mal, who has admittedly been adjudged an insolvent. This would be the first point for decision in the appeal which incidentally would also decide the question of his competency to maintain the suit. If he cannot pursue his appeal being an insolvent, obviously he could not maintain his suit for the same reason. While deciding this matter, and in the event of a con clusion that Loku Mal having been adjudged an insolvent cannot maintain his appeal, the learned District Judge may consider the question whether the Insolvency Court cannot be substituted for the respondent Loku Mal to pursue the appeal. Under section 28, clause (2) of the Provincial Insolvency Act, the whole of the property of the insolvent vests in the Court or in i the receiver that may be appointed. Under section 59 (d) of1IG the same Act, it is one of the duties of a receiver to institute, defend or continue any suit or other legal proceedings relating to the property of the insolvent. In the present case, as remarked by the learned District Judge, no receiver or assignee has been appointed by the Insolvency Court, but under section 58 of the Provincial Insolvency Act where no receiver is appoint ed, the Insolvency Court has all the rights of and may exercise all the powers conferred on a receiver under this Act. While accepting the appeal and directing that the learned District Judge, Quetta, will hear the respondent's appeal afresh, I make no order as to costs of this petition. A. H. Petition accepted.