This is an application under Order IX, rule 13 of the Code--of Civil Procedure moved by one of the partners of the defen--dant firm in the suit for setting aside ex parte decree that was passed against the defendant-firm on 25-5-1971. This application has been made on 10-9-1971.
2. The learned counsel for the applicants argued and was, able to show from the record that numerous attempts were made by the Court to effect service in the ordinary way on the defendant firm but they had failed and thereafter the Court had ordered the summons to be served in a substituted way under. Order V, rule 20, C. P. C. By publication in a local newspaper, and, accordingly, such publication was made in the newspaper "Nawa-e-Wakat" of Lahore as the defendant-firm had his prin--cipal place of business at Lyallpur. Even after this substituted servica the summons were sent by registered post by this Court and they were also ordered to be affixed on the notice board of the Senior Civil Judge, Lyallpur. On these facts, counsel for the applicant contends that the summons on the defendant-firm: bad not been served in accordance with the mandatory provision of Order XXX, rule 3, C. P. C. Which lays down that the summons on the partners sued in the name of their firm shall= be served either upon any one or more of the partners or 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 the management of the partnership business there.. Obviously summons in this manner have not been served upon. The defendant firm. It was then argued that when the provisions, of Order XXX, rule 3, C. P. C. Are not complied with it should be held that the summons were not duly served and therefore, ex parte decree should be set aside. In support of this contention the learned counsel cited the case of Goculdas Mahadev v. Dil--sukhrarn K. Bhatt and another (1) and of Ahmed Mian & Co. v. Lokumal (2). In the former case it was held as under:- "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. Com--pliance 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. There is nothing in rule 46-G of Order XXI which overrides or is in conflict with the provisions of Order XXX, rule 3. Consequently when notice under Order XXI, rule 46-A (Sind) Civil P. C. Was not served on the garnishee firm in accordance with the provisions of Order XXX, rule 3 an ex parte order passed against it under Order XXI, rule 46-B (Sind) Civil P. C., must be vacated." in the later case it was observed as follows:-- "The object of rule 3, Order XXX, Civil Procedure Code 1908, 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.
No person can be condemned unheard or without having had an opportunity 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.
Particular care is needed on the part of the Courts in the matter of service in cases e.g., of a firm where contructive or proxy service is deemed to be a good service under the law.
Service by axing copy of summons on outer door of resi--dential house of defendant can be valid only if the defendant (or respondent in an appeal) or his agent or some other person on his behalf had refused to sign the acknowledgement or where the bailiff had, after using all the due and reasonable, 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.
Where the lower appellate Court, in the case of a firm bad taken ex parte proceedings against the firm, in the absence of a proper and
(1) AIR 1943 Sind 188(2) PLD 1962 Quetta 130 legal notice. In compliance with rule 3 of Order XXX, Civil Procedure Code, 1908, and further the service by axing copy of notice on outer door of premises of firm did not comply with rule 17 of Order V.
Held that the proceedings were illegal and must be set aside."
3. It will be seen that both the above rulings support the contention of the learned counsel for the applicant who also cited the case of Malik Muhammad Nazir v. Mian Abdur Rahim and another (1), but this ruling is distinguishable and is not applicable to the present case. The learned counsel also cited 1970 SCMR 466 but this ruling is not available to me from the library of this Court as it has been issued.
4. It will be seen that the present application is moved more than one month after the passing of the decree therefore, the learned counsel for the applicant has argued that under the circumstances of the present case this application is within 30 days from the date when the applicant had knowledge of the decree as summons were not duly served. The affidavit of the applicant shows that be came to know of the ex parte decree only 2 days before he filed the application. In fact he came to know on 7-9-1971 and he has filed the application two days thereafter. This fact was not controverted by the learned counsel for the opponents as such the contention of the learned counsel for the applicant has to prevail. The contention of the learned counsel for the opponents that this application should be held time--barred is consequently of no avail to his client. In my opinion when defendant firm is not served in accordance with the pro-- visions of Order XXX, rule 3, C. P. C. Then in such an eventuality 4 it has to he held that there was no due service of the summons on the firm. .The learned counsel for the opponent has relied upon the cases of Akbar v. Abdul Ghani and others (2) and S. R. Nawaz and another v. Mirza Nasir Ali (3), but obviously these authorities are not in point as they do not deal with the case of service upon a firm.
They are regarding service of summons on individual defendant which is not the case under consideration. The opponents counsel has also cited R. Doraiswami Myer v. C. S. Balasundarram Aiyer and another (4) but this merely lays down that a mere assertion of ignorance of decree by defendant is not sufficient and Coort must decide where summons were not duly served. In this case it will appear, as I have already held above that the summons have not been duly served. As such this authority is of no avail to the opponent's case. The learned counsel for the opponents has also cited AIR 1930 Nag. 425, but there is no ruling of this page available in the reporter as it seems he had given the wrong page to me. The learned
(1) PLD 1968 Lah. 792 (2) PLD 1965 Pesh. 20
(3) PLD 1962 Lah. 185(4) AIR 1926 Mad. 558 counsel for the opponent has cited the Base of Ajab Khan v. Alif Gul and others (1). But this case is regarding the inherent power of the Court to enlarge period of limitation which it is observed the Court cannot do when the period of limitation is laid down by statutory law. This ruling, therefore, has no bearing to any point arising for decision in this case.
5. Next the learned counsel for the opponents has argued that the present application is not maintainable as it is made by one partner of the firm and in support of his contention he cited the case of Chief Engineer Southern Army Poona v. Lt.-Col. Hari Kirath Singh and others (2). But in this case it has been observed.
"In a petition to set aside an ex parte decree against a firm passed after notice to the firm, if the petitioner is a partner of a firm, notice on the firm is certainly notice on him also as a partner, which fact disentitles him from asking the Court to set aside the decree"
But it will be seen in the present case that notice on the defendant-firm has not been served as such this authority is also distinguishable and !s of no help to the opponent's case.
6. From what is stated above it is quite clear that the pro' visions of Order XXX, rule 3, C. P. C. Have not been complied with as such there was not due service upon the defendant fir although substituted service was resorted to which will not override the provisions of Order XXX, rule 3, C. P. C.
7. For the foregoing reasons I allow this application and set aside the ex parte decree. The office shall fix a date for hearing of the suit a fresh after the defendant firm files the written statement.
('I) AIR 1935 Pesh. 146 (2) AIR 1960 Mys. 205