The facts giving rise to this civil revision are that the respondent, Koh-i---Noor Textile Mills Ltd., Peshawar Road, Rawalpindi, filed a suit against the Koh-i-Noor Agency, Punjab Block, Azam Cloth Market, Lahore, through the Petitioner, Seth Qamar Din, for recovery of Rs. 10,50,555.53. The suit, which was resisted, was ultimately decreed to the extent of Rs. 9,98,711.57. During the execution of the decree passed in the suit, it was directed by the Civil Judge, who was seized of the execution proceedings, that the petitioner be arrested and detained in civil prison for non-payment of the decretal sum. This order was made by the learned Civil Judge under clause (b) of rule 50 of Order XXI of the Code of Civil Procedure. Feeling aggrieved by his order, the petitioner has come up in revision to this Court.
It was contended by learned counsel for the petitioner that the judgment-- debtor, namely, Koh-i- Noor Agency, was a firm and since the petitioner was not a partner of that firm, the decree could not be executed against his person. It was, therefore, maintained by the learned counsel that the order for the arrest and detention of the petitioner was not sustainable.
3. Rule 50 of Order XXI of the Code of Civil Procedure reads as follows;-- "Execution of decree against firm.-(1) Where a decree has been passed against a firm execution may be granted-
(a) against any property of the partnership ;
(b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner ;
(c) against any person who has been individually served as a partner with a summons and has failed to appear Provided that nothing in this sub-rule shall be deemed to limit or other--wise effect the provisions of section 247 of the Contract Act, 1872.
(2) Where the decree-holder claims to be entitled to cause the decree be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c), as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be determined in any manner in which any issue in a suit may be tried and determined. .
(3) Where the liability of any person has been tried and determined under sub-rule (2) the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
(4) Save as against any property of the partnership, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer."
4. Rules 6 and 7 of Order XXX of the Code of Civil Procedure, which have been referred to in clause
(b) of sub-rule (1) of rule 50 of Order XXI, are to the following effect.
"6. Appearance of partners.-Where persons are sued as partners in the flame of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.
7.No appearance except by partners.-Where a summons is served in the manner provided by rule 3 upon a person having the control of management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued."
5. Rule 3 of Order XXX of the Code of Civil Procedure makes the following order.
"3. Service.-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 Pakistan, Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within Pakistan whom it is sought to make liable."
6. In reply to the contentions of learned counsel for the petitioner, it was urged by learned counsel for the respondent (decree-holder) that the service of summons issued in the suit was effected on the petitioner and since at the time of its service it was not declared to him that he was being sued as a partner or otherwise, he shall be deemed to have been served as a partner within the meaning of clause (c) of sub-rule (1) of rule 50 of Order XXI of the Code of Civil Procedure. In this connection, he placed reliance on rule 5 of Order XXX of the Code of Civil Procedure which reads as under :- "5. Notice in what capacity served.-Where a summons is issued to a firm and is served in the manner provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and in default of such notice, the, person served shall be deemed to be served as a partner."
Learned counsel for the respondent relied on Balshnab Charan Shafts and another v. The Bank of Bengal 26 I C 866, Lal Chand v. Firm Dawarka Das Badri Parshad AIR 1928 Lah, 528,to support his plea.
7. While commenting on the argument of learned counsel for the respondent, it was submitted by learned counsel for the petitioner that the summons issued in the case was not issued in accordance with the provi--sions of rule 3 of Order XXX of the Code of Civil Procedure and, therefore, the .Provisions of rule 5 thereof were not attracted to the present case. Elaborating this point, it was maintained by learned counsel for the petitioner that according to rule 3 it was incumbent upon thelearned trial' Court to direct that service shall be effected on one or more partners of the firm or on the person having control or management of the partnership business but since no such direction was given by the Court, the service was not effected in terms of the provisions of rule 3. He placed reliance on The Provincial Industrial Development Corporation v.
Messrs Sh. Muhammad Amin & Co. PLD 1972 Kar, 393,and Ahmad Mian & Co. v. Lokumal PLD 1962 (W. P.) Quetta 130,to support his sub--mission.
8. In view of the above arguments of learned counsel for the parties, which were addressed on 10th March, 1982, 1 decided to obtain the record of the trial Court with a view to examining the summons issued to the petitioner. After the record was received, the case came up before me on 8th May, 1982 for further hearing but on that date no one appeared on behalf of the respon--dent although I waited for the respondent and his learned counsel for a long time. After hearing learned counsel for the petitioner for some time, therefore, I reserved my judgment which is being announced today (14th June 1982). In the meantime, no petition was made by the respondent for re-hearing of this case. It, therefore, appears that the respondent had nothing to add to the arguments already advanced by its learned counsel.
9. The summons issued in the suit giving rise to this revision appears at page 129 of the record of the trial Court. It was addressed to the defen--dant i. e., Koh-i-Noor Agency, through the petitioner (Seth Qamar-ud-Din) and served on the petitioner through his son. While affecting service, it was not notified by the Process-Server that service was being effected on the petitioner as a partner or as a person having control or management of the partnership business or in both characters. Also, when summons was ordered A to be issued,, it was not directed by the learned trial Court that it will be sent to the petitioner as a partner or as a person having control or management of the partnership business. No indication to this effect was given in the summons either. Therefore, in view of the law laid . Down in the cases of The Provincial Industrial Development Corporation and Ahmad Allan & Co., cited by the learned counsel for the petitioner, I hold that the summons was not issued in accordance with the provisions of rule 3 of Order XXX of the Code of Civil Procedure.
10. As clearly stated in rule 5 of Order XXX, its provisions are to take effect where "a summons is issued . . . . . . . . In the manner provided by rule 3". Since summons in the instant case was not issued in the said manner, rule 5 is not attracted to this case. It is, therefore, not open to the respon--dent to contend, on the strength of the deeming clause of rule 5, that since at the time of effecting service of summons on the petitioner the precise character in which he was served was not notified to him he shall be deemed to have been served as a partner and could, therefore, be proceeded against under clause (c) of sub-rule (1) of rule 50 of Order XXI of the Code of Civil Procedure.
11. In the case of Balshnab Charan Shaha and another, relied upon by learned counsel for the respondent the question was whether a partner, namely, Baishnab Charan Shaba was individually served with the summons as a partner. The plaintiff in that suit had made an application stating that Baishnab Charan Shaba was a partner in the firm and it is prayed that the summons be served on him on behalf of the firm. On this application, following order was made by the trial Court :- "Be it so, at the applicant's own risk under Order XXX, rule 3, sub---rule (a)."
On the summons issued to him it was reported that he had refused to grant a receipt and, therefore, a copy of the summons was hung up on the outer door of the place of business of the firm. In the circumstances the view taken was that it was a good service under rule 17 of Order V of the Code of Civil Procedure and since at the time of effecting service he was not informed, by notice in writing, whether be was served as a partner or as a person having the control or management of the firm or in both the characters, he shall be deemed to have been served as a partner. The facts of the case of Baishnab Charan Shaha and another are materially different from those of the case in hand. In the case under report, as indicated above, it was expressly directed by the trial Court, on an application made to it, that Baishnab Charan Shaba be summoned as a partner but no such direction was given by the trial Court when the summons was ordered to be issued to the petitioner before me nor the capacity in which he was to be served with the summons was disclosed in the summons itself. The case of Baishnab Charan Shaha and another is, therefore, of no help to the respondent.
12. In the case of Lal Chand, which was also cited by learned counsel for the respondent, the firm of Ghumandi Lal-Lal Chand was sued through Lal Chand and Bhondu Mal (wrongly described in the plaint as Bunda Mal) as partners. The summons issued to the firm was duly served on Abad Bihari, who held a power of attorney on behalf of Lal Chand and Bhondu Mal. The power of attorney empowered him to act not only on behalf of the firm but also on behalf of each partner individually and jointly. It was, therefore, held that service on the attorney was service upon each partner individually. In the present case, the firm, namely, Koh-i-Noor Agency was not sued through the petitioner as a partner nor he had defended the suit as such. Instead, it was defended by him as Managing Director of the firm. Thus, the case of Lal Chand is also distinguishable on facts.
Moreover, Lal Chand's case does not deal with the deeming clause of rule 5 of Order XXX or the omission of the trial Court to give direction regarding service of summons as required by rule 3 thereof. It has, therefore, little bearing on the point in issue.
13. As indicated above, the learned Civil Judge had made the impugned order against the petitioner on the basis of clause (b) of sub-rule (1) of rule 50 of Order XXI of the Code of Civil Procedure. In this connection, it was urged by learned counsel for the petitioner that the petitioner had appeared before the learned trial Court not in his own name but as an employee of the defendant firm. It is evident from the written statement filed in the suit that it was submitted by the petitioner as Managing Director of the firm. I am, therefore, inclined to agree with learned counsel for the petitioner that the petitioner had not appeared before the learned trial Court in his own name. It is not the case of the respondent that the petitioner had admitted on the pleadings that he was or had been adjudged as a partner. It was also not argued by learned counsel for the respondent that the learned Civil Judge was justified in making the impugned order on the score of clause (b) of sub-rule (1) of rule 50 of Order XXI of the Code of Civil Procedure. His plea was that the order under revision was warranted by clause (c) thereof but, for reasons already given, clause (c) is not applicable to the present case.
14. What emerges from the above discussion is that the impugned order of the learned Civil Judge suffers from an illegality inasmuch as it is in g disregard of the relevant provisions of law. 1, therefore, accept this civil revision and set aside his order. There shall, however, be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.