Order XXX Rule 5 CPC - Notice in What Capacity Served

Order 30 Rule 5 of the Code of Civil Procedure, 1908 requires written notice identifying the capacity in which a person receives summons addressed to a partnership firm. It operates alongside Order XXX Rule 3, which governs service of summons on firms.

Text of Order XXX Rule 5 CPC

Meaning and purpose of Rule 5

When a firm is sued in its firm name, the summons may be delivered to a partner or, subject to Rule 3, to a person controlling or managing the business at its principal place in India. Rule 5 ensures that the recipient is told in writing whether service is made upon that person as a partner, as a person in control or management, or in both capacities.

The requirement matters because receipt of summons as a manager is not the same factual assertion as receipt in the capacity of a partner. The written notice clarifies the basis on which service is effected.

Essential requirements under Order 30 Rule 5

1. A summons must have been issued to a firm.
2. Service must take place in a manner contemplated by Order XXX Rule 3 CPC.
3. The person served must receive a written notice at the time of service identifying the capacity in which service is made.
4. If the required notice is omitted, Rule 5 provides that the person served is deemed to have been served as a partner.

Effect of failure to give written notice

Rule 5 expressly provides a statutory consequence: in default of written notice specifying the capacity, the recipient is deemed to have been served as a partner. This deeming provision addresses the capacity of service; it should not be treated, by itself, as conclusive proof that the recipient was in fact a partner or personally liable for the firm's debts. Any dispute over partnership status or liability must be considered under the applicable procedural and substantive law.

Related provisions and legal context

Order XXX Rule 1 CPC - Suing in the firm name

Rule 1 permits qualifying partners carrying on business in India to sue or be sued in the name of their firm, subject to its terms.

Order XXX Rule 2 CPC - Disclosure of partners

Rule 2 addresses disclosure of the names and residences of partners when a suit is brought by partners in the firm name.

Order XXX Rule 3 CPC - Service

Rule 3 specifies the permissible modes of serving summons on a firm and includes a special proviso for partnerships dissolved to the plaintiff's knowledge before suit.

Order XXX Rule 8 CPC - Appearance under protest

Rule 8 provides a procedure for a person served as a partner who disputes being a partner and wishes to appear under protest.

Indian Partnership Act, 1932

Section 4 defines partnership as the relation between persons who have agreed to share profits of a business carried on by all or any of them acting for all. Section 25 addresses partners' liability for acts of the firm done while they are partners. These provisions help distinguish the status of a partner from that of an employee or manager. See the Indian Partnership Act, 1932 on India Code.

Practical illustration

Suppose a summons addressed to a partnership firm is served at its principal place of business upon a manager who controls its operations. Under Rule 5, the accompanying written notice should specify that service is being made upon the recipient as a person having control or management of the partnership business, rather than as a partner, unless both capacities apply. If no such notice is given, the statutory deeming rule concerning service as a partner applies.

Official legal references

For the statutory framework, consult the India Code official legislation portal and locate the Code of Civil Procedure, 1908, First Schedule, Order XXX, Rules 1 to 10. Court-specific amendments and applicable High Court rules should also be checked where relevant.