1 CRA No.816/09 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.816 of 2009 M/s.Royal Cafe by its partners (i) Mrs.Cyrus Kayani (ii)Mr.Fram G. Irani ... Applicants versus M/s.Providence Property(P) Ltd. ... Respondent ... Mr. Madhav Jamdar for the applicants. Ms.Gauri Godse for respondent. CORAM : D.G. KARNIK, J DATED : 6th January 2011. P.C. 1. A notice for final disposal of the revision application was issued by this court by an order dated 10 February 2010. In pursuance of the notice, the respondent has appeared through an advocate. By consent, taken up for final hearing. Heard counsel. 2 CRA No.816/09 2. The revision application is directed against the judgment and order dated 24 August 2009 passed by the District Judge 2, Pune dismissing Civil Appeal No.687 of 2007 filed by the revision applicant (for short “the applicant”) and thereby confirming the decree of eviction passed by the Court of Small Causes, Pune. 3. The respondent is the owner of the property bearing CTS No. 482, Khadki Pune. The applicant firm was a tenant in respect of a hotel premises admeasuring 42’ x 40’ situate on the ground floor of the respondent’s property and was carrying on a business of a hotel therein. On 18 February 2006, the respondent filed a suit (RCS Suit No.502/06) in the Court of Small Causes at Pune. Summons issued to the applicant at the address of the rented premises (hereinafter referred to as “the suit premises”) was returned unserved with the remark “that the hotel was closed and none of the partners was residing in the suit premises”. On the respondent’s application, the trial court ordered re-issuance of a summons by substituted service. It directed that the summons be 3 CRA No.816/09 served by affixing it to the suit premises and as well as by public notice in a local newspaper. The summons was accordingly served by the Court bailiff by affixation on 28 November 2006 and a public notice was also published in the local newspaper on 30 November 2006. Despite service, the petitioner did not appear in the trial court and therefore, the Court proceeded ex-parte. After recording the evidence of the respondent, the trial court passed a decree of eviction on 2 January 2007. In execution of the decree, the respondent recovered possession of the suit premises on 31 March 2007. The applicant filed an appeal (Civil Appeal No. 687/07) against the judgment and decree of the trial court in the District Court at Pune along with the application for condonation of delay. After condoning the delay, by an order dated 26 August 2009, the appeal was dismissed by the appellate court. That decision is impugned in the present revision. 4. Learned counsel for the applicant submitted that the suit summons was not properly issued and not properly served on the applicant and therefore, an ex-parte decree was required to be set 4 CRA No.816/09 aside in appeal. 5. Order 9 Rule 13 of the Code of Civil Procedure inter alia provides that in any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceedings of the suit. If the grievance of the appellant was that the suit summons was not properly served on him, he had an efficacious remedy to apply to the trial court itself for setting aside of the decree under Order 9 Rule 13. In such a case, the court would have been required to consider whether there were good grounds for substituting service under Order 5 Rule 20 and whether summons was duly served on the applicant in accordance with law. In stead of that, the applicant chose to file an appeal perhaps 5 CRA No.816/09 because it did not wish to face the second proviso to Order 9 Rule 3 which provides that no Court shall set aside a decree passed ex- parte merely on the ground that there has been an irregularity in service of summons, if it is satisfied that the defendant had notice of the date of hearing and sufficient time to appear and answer the plaintiff’s claim. Perhaps he wanted to get rid of this proviso and therefore, did not apply for setting aside of a decree. 6. Undoubtedly, the petitioner had a right to file an appeal against the ex-parte decree but in an appeal he would be required to show to the appellate court that even on the basis of the evidence which was adduced before the trial court, the trial court ought not to have passed a decree. Learned counsel for the applicant was unable to point out to the appellate court that on the evidence which was adduced before the trial court by the respondent at the ex-parte hearing was not sufficient for passing of a decree. Counsel was also unable to point out before me that the evidence was insufficient and that no interference in the judgment of the District Court was called for in exercise of a 6 CRA No.816/09 limited jurisdiction under section 115 of the Code of Civil Procedure. 7. Learned counsel for the respondent submitted that the suit itself was defective. He pointed out that the respondent had arrayed “M/s.Royal Cafe”, a registered partnership firm as the defendant. He also pointed out that after the firm, the respondent plaintiff had named three persons as partners of the firm (a) Mr.Cyrus Kayani (b) Mr.Boman Irani and (c) Mr.Fram G. Irani. Mr.Jamdar submitted that Mr.Boman Irani had died even before the institution of the suit and consequently, the suit itself was bad in law as the suit was filed against a dead person. He further submitted that the firm M/s.Royal Cafe was reconstituted after the death of Mr.Boman Irani with the remaining two partners continuing as partners. Since Mr.Boman Irani was shown as partners of M/s.Royal Cafe in the suit, the suit was against a dead person and therefore, a nullity and the appellate court ought to have set aside the decree on that ground. In my view, the submission cannot be accepted. Order 30 Rule 1 of the Code of 7 CRA No.816/09 Civil Procedure provides that any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were the partners at the time of accrual of the cause of action. Mr. Cyrus Kayani and Mr.Fram Irani who were the partners of M/s.Royal Cafe when the cause of action arose (or when the suit was filed) could be sued in the name of the firm viz. M/s.Royal Cafe. It may be noted that M/s.Royal Cafe was arrayyed as the defendant in the suit. Only after writing of the full name and address of the firm, the names of three persons were mentioned as partners. The fact that one of them was not in fact a partner as he had already died would not make the suit defective because the remaining partners could be sued in the name of the firm and they were so sued. No other point was urged. There is no merit in the revision application which is hereby dismissed. (D.G.KARNIK, J)