Supreme Court - Daily Orders
Sumer Singh Galundia vs Jeevan Singh (Since Deceased Through ... on 16 December, 2022
Bench: Surya Kant, J.K. Maheshwari
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.9292 OF 2022
(Arising out of SLP(C)No.7734 of 2020)
SUMER SINGH GALUNDIA & ANR. … APPELLANTS
Versus
JEEVAN SINGH (SINCE DECEASED THROUGH LRS)
& ORS. … RESPONDENTS
O R D E R
1. Leave granted.
2. M/s Kamal Engineering Works was a partnership firm
comprising two partners – Shiv Singh Galundia and his son – Sumer
Singh Galundia. The firm filed Civil Suit No.73/1996 for specific
performance of contract, damages, declaration and for permanent
injunction. The Additional District and Sessions Judge No. - 2,
Jaipur District, Jaipur dismissed the aforesaid Suit on 07.11.2003.
3. The aggrieved partnership firm filed a First Appeal
before the High Court. During the pendency of that appeal, one of
the partners, namely, Shiv Singh Galundia died. His legal heirs,
which included his wife, two sons and a daughter moved an
application under Order XXII, Rule 3 CPC in the pending appeal for
their substitution as legal representatives of the deceased
Signature Not Verified
Digitally signed by
partner.
satish kumar yadav
Date: 2022.12.21
16:34:44 IST
Reason:
4. The High Court vide the impugned order dated 20.07.2019
has taken the view that with the demise of Shiv Singh Galundia –
2
one of the two partners, the partnership firm stands dissolved
automatically and, thereafter, right to sue does not survive to the
other partner for seeking the relief(s) as were prayed for by the
partnership firm in the Suit. Consequently, the first appeal
itself has been dismissed as abated. The appellants are the two
sons of late Shiv Singh Galundia, who being aggrieved by the
impugned order, are before us by way of present appeal.
5. Heard learned counsel for the parties and carefully
perused the material placed on record.
6. It appears to us that the High Court has completely
overlooked Order XXX Rule 4 of the Code of Civil Procedure which
reads as follows:
“4. Right of suit on death of partner.-(1)
Notwithstanding anything contained in section 45
of the Indian Contract Act, 1872 (9 of 1872),
where two or more persons may sue or be sued in
the name of a firm under the foregoing provisions
and any of such persons dies, whether before the
institution or during the pendency of any suit,
it shall not be necessary to join the legal
representative of the deceased as a party to the
suit.
(2) Nothing in sub-rule (1) shall limit or
otherwise affect any right which the legal
representative of the deceased may have-
(a) to apply to be made a party to
the suit, or
(b) to enforce any claim against the
survivor or survivors.”
7. Similarly, Order XXII, Rule 10 CPC too has some bearing
on the issue as it provides as under:
“10. Procedure in case of assignment before
final order in suit.- (1) In other cases of an
assignment, creation or devolution of any
3
interest during the pendency of a suit, the suit
may, by leave of the Court, be continued by or
against the person to or upon whom such interest
has come or devolved.
(2) The attachment of a decree pending an
appeal therefrom shall be deemed to be an
interest entitling the person who procured such
attachment to the benefit of sub-rule(1).”
8. There is no gainsaid that where two persons have sued in
the name of a partnership firm and if one of such persons dies
during the pendency of the proceedings, it is not necessary to join
the legal representatives of the deceased as a party to such
proceedings, which shall continue in accordance with law. In other
words, the death of one of the partners does not foreclose the
continuation of the civil proceedings initiated by the firm. In
this view of the matter, the death of Shiv Singh Galundia could not
be a valid reason to declare the First Appeal to have abated.
9. Further, the legal representatives of the deceased - Shiv
Singh Galundia had already applied for their impleadment in
substitution of the deceased and there was no reason for the High
Court to decline such a prayer when the application was moved in
time without any other legal impediment in accepting their prayer.
10. It also appears to us that the High Court has completely
misconstrued the view taken by this Court in AVK Traders vs. Kerala
State Civil Supplies Corporation Limited, (2013) 15 SCC 217. This
Court in para 12 of the said decision has held as under:
“12. We are in this case faced with a situation of a
registered partnership firm, consisting of only two
partners, filing a suit when both the partners were
alive and during the pendency of the suit, one of the
partners died and legal heir of the deceased partner
did not show any interest either in the assets of the
4
firm or in the liabilities and had refused to join as
a partner. The question is, on dissolution of the
partnership firm on the death of the partner, could
the suit already filed be proceeded with by the
remaining so-called partner? We notice that the
subordinate court has allowed that prayer possibly
bearing in mind the principle laid down in Order 22
Rule 10 CPC, which deals with the procedure in case
of assignment before the final order of the suit.
Rule 10 refers to “devolution of any interest” during
the pendency of the suit. In such a case, the court
can grant leave to prosecute the suit against the
person to or upon whom such interest has been
devolved. Admittedly, the partner who died is none
other than the father of the appellant and the other
sole surviving heir is his sister. The sister is
admittedly not interested in joining the firm and,
therefore, she is not taking over the assets and
liabilities of the firm. Therefore, there has been a
complete devolution of interest in favour of the
appellant. Under the circumstances, the subordinate
court had allowed the amendment and permitted the
appellant to proceed with the suit, granting
necessary amendment, which, according to the
subordinate court, was necessary for a proper and
effective adjudication of real dispute between the
parties. The High Court, in our view, by taking a
hypertechnical approach held that if such a prayer is
allowed, the same would alter the nature and
character of the suit. In our view, such a stand
cannot be countenanced considering the peculiar facts
and circumstances of the case.”
[emphasis applied]
11. Para 13 of the above-mentioned judgment cannot be said to
have held the suit would stand abated in the event of death of one
of the partners where the partnership firm comprises two partners.
What this Court has observed is that where one of the several
partners dies in the suit instituted in the name of the partnership
firm “as compared to when one of the two partners of the
partnership firm dies”, the decree so granted would not be
executable even if the partnership firm succeeds in the suit. It
does not mean that the suit stands abated.
5
12. For the reasons aforementioned, the appeal is allowed,
the impugned judgment dated 20.07.2019, passed by the High Court,
is set aside and S.B.Civil First Appeal No.117/2004 is restored to
its original number and file of the High Court. The High Court
shall proceed to decide the application dated 20.05.2013, filed by
the legal representatives of the deceased - Shiv Singh Galundia
under Order XXII, Rule 3 CPC, for their substitution in place of
the deceased and after deciding that application, the High Court
will take up the appeal on merits.
13. It is clarified that we have not expressed any opinion on
the merits of the case.
14. As a result, pending interlocutory application also
stands disposed of.
.........................J.
(SURYA KANT)
..............…….........J.
(J.K. MAHESHWARI)
NEW DELHI;
DECEMBER 16, 2022.
6
ITEM NO.35 COURT NO.11 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).7734/2020
(Arising out of impugned final judgment and order dated 20-07-2019
in SBCFA No.117/2004 passed by the High Court of Judicature for
Rajasthan at Jaipur)
SUMER SINGH GALUNDIA & ANR. Petitioner(s)
VERSUS
JEEVAN SINGH (SINCE DECEASED THROUGH LRS) & ORS. Respondent(s)
IA No.39792/2020 - EXEMPTION FROM FILING O.T.
Date : 16-12-2022 This matter was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE J.K. MAHESHWARI
For Petitioner(s) Mr. Anuj Bhandari, Adv.
Ms. Anjali Doshi, Adv.
Ms. Disha Bhandari, Adv.
Mr. Gaurav Jain, Adv.
Ms. Kanika Sanwal,Adv.
For Respondent(s) Mr. T. Mahipal, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed order. As a result, pending interlocutory application also stands disposed of.
(SATISH KUMAR YADAV) (PREETHI T.C.) DEPUTY REGISTRAR COURT MASTER (NSH) (Signed order is placed on the file)