Delhi High Court
Shri Ujjwal Sarin vs Om Parkash Baldev Krishan And Ors. on 4 July, 2006
Equivalent citations: 131(2006)DLT19, (2006)144PLR5
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
Page 2749 CM (M) No. 2174/2005
1. Admit.
2. At request of learned Counsel for the parties, the petition is taken up for final disposal at this stage.
3. The petitioner is aggrieved by the order passed by learned Additional District Judge in terms whereof the application filed by him under Order I Rule 10 of the Code of Civil Procedure, 1908 (hereinafter to be referred to as, 'the Code') has been dismissed.
4. A suit for possession was filed by the partnership firm. The partnership was registered and, thus, the two partners were imp leaded as the plaintiffs. The father of the applicant / petitioner was one of the partners who passed away in 1991. The suit has thereafter been prosecuted by the partnership firm.
5. The petitioner was a 'minor' at the relevant stage of time, but became a 'major' in 1993. The application was, however, filed in the year 2001.
6. Learned Counsel for the petitioner contends that there are disputes arising between him and other members of the family including the partner, who had not passed away with the result that there are apprehensions that the interest of the petitioner may not be looked after. It is in view thereof that the petitioner seeks impleadment in the suit. Learned Counsel further submits that the petitioner is not seeking to alter the pleadings on record in any manner, but only wants to ensure proper prosecution of the suit.
7. Learned Counsel has drawn attention of this Court to the reasoning given in the impugned order for rejection of the application. Learned Additional District Judge has held that presence of the plaintiff is not necessary for effective and final adjudication of the matter. The Trial Court also found merit in the contention of the respondents that the petitioner could only claim dissolution of the firm by filing a separate suit, but was not entitled to be a party in the suit. The effect of the provisions of Order XXX of the Code had been discussed and a conclusion is arrived at that the legal representatives of a deceased party can only apply to became a party to the proceedings, but it is otherwise not necessary that the L.R.s of the partner, who was not a party to the proceedings, should be imp leaded as a party on the death of such partner. This finding is assailed by learned Counsel for the petitioner.
8. In order to appreciate the controversy between the parties, it is necessary to reproduce the provisions of Order XXX Rules 1 and 4 of the Code, which are as under:
ORDER XXX SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN Page 2750
1. Suing of partners in name of firm. - (1) 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 partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accuring of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.
(2) Where persons sue or are sued partners in the name of their firm under Sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons.
2. Disclosure of partners' names....
3. Service....
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.
9. Rule 1 of Order XXX of the Code permits suing in the name of the firm and as per Sub-rule (2) of Rule 1, the pleadings can be verified and certified by anyone of the said partners. Sub-rule (1) of Rule 4 prescribes that notwithstanding anything contained in the provisions of Section 45 of the Indian Contract Act, 1872, it would not be necessary to join the legal representatives of the deceased partner as a party to the suit. This is qualified by Sub-rule (2) of Rule 4 inasmuch as it is provided that Rule 1 shall not limit the right of a legal representative of the deceased to apply to be made a party to the suit. The petitioner seeks to exercise the rights under this Clause (a) of Sub-rule (2) of Rule 4 of the Order 30 of the Code.
10. Learned Counsel for respondent No. 1, who represents the firm and the other partner, has no objection to the impleadment of the petitioner though before the Trial court, a stand was taken that such an impleadment is not necessary. The objection is only by respondents No. 2 to 4, who are the defendants in the suit.
11. Learned Counsel for respondents No. 2 to 4 contends that in a similar factual matrix, it was held by the Supreme Court that impleadment of the legal representatives of a deceased partner is not necessary and referred to the judgment in Anokhe Lal v. Radhamohan Bansal and Ors. Page 2751 In the said case, a suit for eviction was filed by the landlord against the tenant, which was a partnership firm. The application was filed on the death of the partner by his son under Order I Rule 10 of the Code, which was dismissed. It is thereafter that the son filed another application under Order XXX Rule 4 of the Code, which was also dismissed, but the High Court in exercise of the revisionary jurisdiction allowed the application. This was despite the fact that at the time of passing of the order by the High Court, a decree for eviction had already been passed and no suit or appeal was pending. In these facts, it was held that there was no need or occasion to pass any order for impleadment of a person as no suit was pending when the High Court had taken up the revision petition. It was further observed that a court should be very circumspect in dealing with an application of a third-party seeking leave to become a party in a suit when the plaintiff is opposed to it since the plaintiff is the dominus litis. The consequence of addition of the party would involve a de novo trial and, thus, the Supreme Court observed that the court should have disallowed the application. Learned Counsel has relied upon the observations made in paras 7 and 8 of the said judgment, which read as under:
7. The aforesaid Rule 4(1) is clearly an exception to Section 45 of the Contract Act. The principle made out in Section 45 applies to a situation where one person has made a promise to two or more persons jointly. The right to claim performance of the contract arising out of such a promise would then rest with those promises together during their joint lives and after the death of any of them, such right would devolve on the representative of the deceased promisejointly with the surviving promises. Thus, if the joint promises were partners of a firm this provision obliges the legal representative of a deceased partner to join the rest in enforcement of the right to have performance of the contract. This is the nub of Section 45 of the Contract Act. But a conflict of opinions arose between different High Courts regarding interpretation of the rule involved in the said Section. high Courts of Madras, Bombay and Allahabad took the view that in a suit for enforcement of the said right by a firm legal representatives of a deceased partner need not be imp leaded, whereas the Calcutta High Court took the contrary view that in such a case legal representatives were necessary parties. In fact Sub-rule (1) of Rule 4 of Order 30 has been prescribed to resolve the said conflict by diluting the rigour contained in the rule embodied in Section 45 of the Contract Act in relation to a suit involving a partnership firm.
8. What Sub-rule (1) of Rule 4 in Order 30 of the Code provides is that it is not mandatory to join the legal representative of a deceased partner as a party in the said suit. What Sub-rule (2) says, in other words, is that Sub-rule (1) is not a hindrance to any legal representative of a deceased partner to get himself imp leaded if he has otherwise any right to do so. It is, therefore, clear that Sub-rule (2) does not create any right as such for a legal representative to get imp leaded in a suit, but it only operates as an exception to Sub-rule (1). At any rate, Rule 4 (2) of Order 30 cannot come into operation in a situation where order 1 Rule 10 of the Code cannot be invoked.
Page 2752
12. In my considered view, the aforesaid judgment does not come to the aid of learned Counsel since all that has been observed is that it is not mandatory that in every case on an application being filed, the benefit of Sub-rule (2) of Rule 4 of Order XXX of the Code should be made available to the legal representatives to be imp leaded in the suit and the said Sub-rule, in any case, could not be invoked when the application under Order 1 Rule 10 of the Code had already been dismissed.
13. In the present case, there were only two partners and, thus, undisputedly on the demise of one of the partners, the partnership came to an end. However, the suit can be proceeded with in the name of the partnership firm. It is not mandatory that the legal representatives of the deceased partner should join the proceedings. However, it cannot be said that if such legal representatives seek to join the proceedings, especially on the allegation that in view of the inter se disputes, the rights of the legal representatives may be compromised, such an application ought not to be entertained. I am of the considered view that the Trial Court ought to have allowed the application of the petitioner.
14. Another aspect, which is now germane, is the stand of respondent No. 1. The plaintiff is a dominus lIT is as observed in Anokhe Lal's case (supra) and the stand now taken by respondent No. 1 is that it has no objection if the petitioner is added as a party. In fact, the stand now taken is that it may be appropriate to implead the petitioner as plaintiff No. 2 since the petitioner does not even seek to alter any of the pleadings, but only wants to see proper prosecution of the suit of possession to aid the partnership firm in that behalf.
15. In view of the aforesaid facts and circumstances of the case, the impugned order dated 12.08.2005 is set aside and the petitioner is permitted to be imp leaded as plaintiff No. 2 in the suit with the condition that the petitioner does not seek to modify the pleadings already filed.
16. The suit has been filed in the year 1984 and is stated to be still pending. The Trial Court is directed to expedite the trial in the matter and to endeavor to complete the same and pronounce judgment preferably within a period of one year from today.
17. The petition stands disposed of.
CM No. 13377/2005 IN CM (M) No. 2174/2005
18. No further orders are called for in this application in view of disposal of the main petition.
19. Application stands disposed of.