IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY THIRD DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.3611 of 2002 Between: Kilaru Gopi Prasad ..... Appellant AND C.Pitchandi and others. ....Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.3611 of 2002 JUDGMENT : (PER HON’BLE SRI JUSTICE B.N.RAO NALLA) The unsuccessful petitioner-4th defendant filed instant appeal against order, dated 19.11.2002 in I.A. No.174 of 2000 in O.S. No.24 of 1996 on the file of the Court of the IV Additional District Judge at Visakhapatnam. His petition under Order IX Rule 13 of the Code of Civil Procedure (for short ‘CPC’) to set aside the ex parte decree and judgment, dated 21.12.1999 in O.S. No.24 of 1996, was dismissed by trial Court accepting the plea of respondents. In this appeal, parties are referred to as they are arrayed in suit. The case of the 4th defendant is as follows. The plaintiff filed the above numbered suit against the 1st defendant firm and its partners including the 4th defendant for recovery of Rs.22,99,419/-. No notice has ever been served upon the 4th defendant in the suit or in any other proceedings connected therewith. Though the plaintiff fully conscious of the fact that the 4th defendant is a permanent resident of Hyderabad, the plaintiff mischievously gave wrong address. In those circumstances, the suit summons could not be served on the 4th defendant and same was returned unserved. Thereafter, substituted service of suit notice was ordered to publish in Vijayabhanu Newspaper, which is having little or no circulation even in Visakhapatnam City also. On the strength of such a publication, the trial Court set him ex parte on 01.09.1994. In the month of December, 1999, the 4th defendant came to know about the pendency of the above suit. Then, he filed a petition in I.A. No.1629 of 1999 under Order IX Rule 7 of CPC to set aside the ex parte order dated 01.09.1994 and the same was dismissed. The present petition is filed under Order IX Rule 13 of CPC and the relief sought for in this petition is entirely different to the relief sought in the earlier petition filed under Order IX rule 7 of CPC. Plaintiff opposed petition taking following pleas. Though several times notices were ordered by the Honourable Court, the 1st defendant has successfully evaded to receive the same. Ultimately, substituted service of notice was ordered. The 1st defendant has been closely following the day-to-day progress of the suit and had ultimately filed the petitions in the very last minute to frustrate the suit and the Honourable Court rightly dismissed the petitions and proceeded to pronounce the judgment. Absolutely, there are no grounds for setting aside the ex parte decree. The only purpose of the 4th defendant is to somehow drag on the matter for some more years. There are absolutely no merits in the petition. Hence, the petition may be dismissed. Heard learned counsel appearing for the 4th defendant- appellant and learned counsel appearing for the plaintiff-1st respondent. Learned counsel for 4th defendant contended that the plaintiff intentionally did not disclose the correct address of the 4th defendant and hence, summons could not be served on him. The 4th defendant was not aware of the pendency of the suit upto December, 1999. Learned counsel for the plaintiff submits that the 4th defendant evaded to take summons and ultimately the summons were served on him by way of substituted service and the 4th defendant failed to assign sufficient grounds to set aside the ex parte decree. Originally the plaintiff filed the suit against the 4th defendant and other defendants on the file of this Court during Dasara vacation. The Honourable High Court was pleased to grant interim orders in favour of the plaintiff directing the defendants not to alienate the properties. Upon which the plaintiff gave a paper publication about the same in Eenadu Telugu Newspaper of Hyderabad edition on 26.10.1993 and also in Deccan Chronicle. Basing on the paper publication, the other partners proceeded in the suit. During pendency of the matter, summons issued to petitioner were not served. Subsequently, summons sent to another address was also not served and ultimately substituted service of summons was ordered under Order V Rule 20 of CPC. As per Order V Rule 20(1A) of CPC, where the Court acting under Sub-rule(1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. Therefore, as per Order V Rule 20(1A) of Code of Civil Procedure, it is sufficient if the paper publication is given in the locality where the defendant carried on business. Further, as per Order V Rule 20(2) of CPC, if once publication is made in the newspaper, the same shall be treated as notice served on the defendant personally. Now, at this stage, the 4th defendant cannot plead that no notice was served on him. As per Order XXX rule 3 of CPC, if the notices are served on the firm at the place where the business is carried on is sufficient. In the instant case, except the 4th defendant other partners appeared before the Court. On appearance of the partners, all the subsequent proceedings continue in the name of the firm only. In the petition to set aside ex parte decree against the firm, of which the 4th defendant is a partner, notice on the firm is certainly notice to him also as a partner, which fact disentitles him from asking the Court to set aside the decree. It is not the case of the 4th defendant that the other partners have not properly conducted the proceedings before the Court. Hence, once the decree is passed against the partnership firm, no partner is entitled to file petition under Order 9 Rule 13 of CPC in view of Order XXX Rule 3 of CPC. In view of the above facts and circumstances of the case, we are unable to accept the case of the 4th defendant, who miserably failed to establish sufficient cause for his non-appearance in the trial Court. On the other hand, the 4th defendant approached the trial Court with a petition under Order IX Rule 7 of CPC at the time when the Court posted the matter for judgment. The conduct of the 4th defendant goes to show that he was aware of the proceedings right from the beginning. A perusal of the record also reveals that the partners as well as the partnership firm contested the matter and after giving a reasonable opportunity to other defendants, the trial Court decreed the suit. Therefore it is not ex parte as pleaded by the petitioner. The suit continues in the name of the firm, though it’s partners participate in the trial. The impugned order dated 19.11.2002 in I.A. No.174 of 2000 in O.S. No.24 of 1996 passed by the learned IV Additional District Judge, Visakhapatnam does not warrant interference from this Court in any manner and therefore, the appeal is devoid of merits as deserves to be dismissed. In the result, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. ___________ V.V.S.RAO, J _______________ B.N.RAO NALLA, J OCTOBER 23, 2009 KSH