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M.S. Pearl Sound Engineer Vs. Pooran Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 579 of 1965
Judge
Reported inAIR1975All207
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 3 and 11 - Order 30, Rules 1 and 4
AppellantM.S. Pearl Sound Engineer
RespondentPooran Chand and ors.
Appellant AdvocateKeshav Sahai and ;M.C. Agrawala, Advs.
Respondent AdvocateSudhir Chandra Agrawala, Adv.
DispositionAppeal dismissed
Excerpt:
.....of legal heirs - order 30, rule 1 and order 22, rules 3 and 11 of code of civil procedure,1908 - suit filed firm impleading the firm as well as all its partners impleadment of the firm is unnecessary when all the partners in their individual names are there - if one of the partner dies and no legal representative appear appellate court cannot modify the decree and it becomes final. - - the said accommodation was said to have been constructed after 1st january, 1951. the plaintiffs terminated the tenancy of the defendant by notice dated 25th may, 1963, and as he failed to comply with the same, a suit for the aforesaid reliefs was filed. when a suit is filed impleading the firm as well as all its partners, the impleadment of the firm is unnecessary and the firm as a party is merely a..........in conjunction with or without the firm, aid of order xxx, c. p. c. is not taken and to such a suit rule 4 of that order would, therefore, not apply. hence, where a suit is filed by or against two or more persons in their individual names as partners in conjunction with the firm or without the firm and any of them dies during the pendency of the suit, it would be necessary to join the legal representatives of the deceased as party to the suit.7. in the instant case, the suit was filed in the name of the firm as plaintiff no. 1. the partners of the firm joined as plaintiffs 2 to 6 in the suit. these partners, therefore, did not invoke the provisions of rule 1 of order xxx of the code of civil procedure. they could file the suit even without impleading their firm as plaintiff. the.....
Judgment:

T.S. Misra, J.

1. This is a defendant's appeal arising out of a suit for ejectment from the premises in question and for recovery of arrears of rent and mesne profits.

2. The case of the plaintiffs was that the defendant-appellant had occupied the accommodation in question as a tenant in the year 1956 agreeing to pay rent at the rate of Rs. 250 per annum and water charges at the rate of Rs. 5/62/-The rate of rent was subsequently enhanced to Rs. 350/- per annum with effect from 1st January. 1962. It was alleged that the premises belonged to the partnership firm Pooran Chand and Sons, the plaintiff No. 1 in which the plaintiffs 2 to 7 were partners. The said accommodation was said to have been constructed after 1st January, 1951. The plaintiffs terminated the tenancy of the defendant by notice dated 25th May, 1963, and as he failed to comply with the same, a suit for the aforesaid reliefs was filed.

3. The defendant contested the suit on a number of grounds. He alleged that the accommodation in question had been constructed prior to 1st January, 1951, and as such the suit was barred by the provisions of the U. P. Act III of 1947. He also denied that the rate of rent was enhanced to Rs. 350. The trial court held that the entire disputed accommodation was not constructed after 1st January, 1951, that the rate of rent was not enhanced from Rs. 250 per annum to Rs. 350 per annum, that the tenancy was not annual but monthly, that nothing was due from the defendant against rent for the year 1962 and that the suit was barred by the provisions of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act. It also held that the defendant was liable to pay water charges at the rate of Rs. 2.50 p. per month and that nothing was outstanding against water charges. On those findings the suit was dismissed. Aggrieved by that decision the plaintiffs preferred an appeal. The appellate court below affirmed the finding of the trial court to the effect that the rate of rent was not enhanced from Rs. 250 per annum to Rs. 350 per annum. It was held that the U. P. (Temporary) Control of Rent and Eviction Act III of 1947 did not apply to the case. It was observed that the premises in dispute consisted of a mere room in 1936. Subsequently a glazed verandah, a kitchen, a bath room and a latrine were added to that room after 1951. These major constructions made after 1951 changed the nature of the accommodation and, therefore, the U. P. Act III of 1947 would not apply to any part of it. The appeal was, therefore, partly allowed. The plaintiffs' suit for Rs. 172 being the rent for the period from 1st January, 1963 to 27th June, 1963 and mesne profits at the same rate from 28th June, 1963, till the date of possession on payment of proper court-fee was decreed. Aggrieved, the defendant has come up to this Court in second appeal.

4. Learned counsel for the respondents at the outset raised a preliminary objection to the maintainability of the appeal. He pointed out that Lala Mohan Lal Agarwal, plaintiff No. 2-respondent, had died during the pendency of this appeal and as all his legal heirs were not substituted the appeal abated as against him. It was urged that the appeal, therefore, was not properly constituted and could not be proceeded with and that it had abated as a whole. The learned counsel for- the appellants did not dispute the fact that the plaintiff no. 2 had died during the pendency of this appeal and no application for bringing on record his legal representatives was filed within the period of limitation prescribed for it. He, however, submitted that as the suit was filed by a partnership firm M/s. Pooran Chand & Sons, the plaintiff No. 1 in which the plaintiffs Nos. 2 to 6 were partners, it was not necessary to substitute the legal heirs of Mohan Lal deceased in the appeal, in view of the provisions of Rule 4 of Order XXX of the Code of Civil Procedure. The learned counsel for the respondents, however, submitted that the suit was not only filed by the firm M/s. Pooran Chand and Sons but was also filed by its partners, as plaintiffs 2 to 6; hence the provisions of Rule 4 of Order XXX did not apply and as the decree passed by the appellate court below was to the benefit of all the plaintiffs and was, therefore, a joint decree, the appeal has abated in its entirety.

5. It is true that the suit was filed not only by M/s. Pooran Chand and Sons but also by its partners, being plaintiffs 2 to 6. The plaintiff No. 1 M/s. Pooran Chand and Sons was described as a registered partnership firm. It was stated in the plaint that the plaintiffs 2 to 6 formerly constituted a joint Hindu family and carried on business as members of the joint Hindu family. Subsequently a partnership firm in the name and style of Pooran Chand and Sons was constituted and all the assats and liabilities of the joint family firm became the assets andliabilities of Pooran Chand and Sons. The premises in question became thus the asset of the said firm in which the plaintiffs 2 to 6 were the partners.

6. Rule 1 of Order XXX of the Code of Civil Procedure enables any two or more persons claiming or being liable as partners and carrying on business in India to 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. It provides a new and convenient mode of describing in a suit two or more persons claiming or being liable as partners. The partners may adopt this method and bring the suit in their firm name. So also they may be sued in their firm name. A firm is a compendious collective name for the individual members who constitute the firm. When a suit is instituted by or against a firm it is in reality a suit by or against all the partners of the firm. The firm name stands for all those persons who were its partners at the time of the accruing of the cause of action. In other words, the effect of using the name of the firm is to bring all the partners before the court. This enabling provision contained in Rule 1 of Order XXX does not, however, do away with the traditional method of bringing a suit by or against the partners individually. The partners may not choose to file the suit in the name of their firm. They may file the suit in their individual names either in conjunction with the firm or without the firm as one of the partners. Such a suit would not be a suit under Rule 1 of Order XXX, C. P. C. inasmuch as under Rule 1 the partners may sue or be sued in the name of their firm. When the partners sue or are sued in their individual names only, (and which would be quite legal) the provisions of Rule 1 are not invoked. So also would be the case when the partners sue or are sued in conjunction with their firm. When a suit is filed impleading the firm as well as all its partners, the impleadment of the firm is unnecessary and the firm as a party is merely a surplusage inasmuch as the persons whom it stands for, are themselves impleaded in their individual names as partners. Such a suit cannot be said to have been filed in accordance with Rule 1 of Order XXX, C. P. C. To such a suit the applicability of Order XXII is not excluded. Rule 4 of Order XXX applies where two or more persons sue or are sued in the name of a firm under the provisions of Rule 1 of Order XXX. In other words, the provisions of Rule 4 would not be attracted if the suit is not filed under Rule 1 of Order XXX. Rule 4 dispenses with the requirement of joining as a party to the suit the legal representatives of a deceased partner, whether he had died before the institution or during the pendency of the suit provided that the suit had been filed under Rule 1 of Order XXX, C. P. C. When two or more persons sue or are sued in their individual names as partners either in conjunction with or without the firm, aid of Order XXX, C. P. C. is not taken and to such a suit Rule 4 of that Order would, therefore, not apply. Hence, where a suit is filed by or against two or more persons in their individual names as partners in conjunction with the firm or without the firm and any of them dies during the pendency of the suit, it would be necessary to join the legal representatives of the deceased as party to the suit.

7. In the instant case, the suit was filed in the name of the firm as plaintiff No. 1. The partners of the firm joined as plaintiffs 2 to 6 in the suit. These partners, therefore, did not invoke the provisions of Rule 1 of Order XXX of the Code of Civil Procedure. They could file the suit even without impleading their firm as plaintiff. The decree, which has been passed by the appellate court below is in favour of all the plaintiffs. One of the plaintiffs respondents died during the pendency. It is a settled law that the court will not proceed with the appeal (a) when the success of the appeal may lead to the court coming to a decision which may be in conflict with the decision between the appellant and the deceased-respondent and, therefore, it would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased-respondent, (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are before the court and (c) when the decree against a surviving respondent, if the appeal succeeds, be ineffective, that is to say, it would not be successfully executed. If any one of these tests is satisfied the court may dismiss the appeal, see Pardip Srichand v. Jag-dish Prasad Kishan Chand, AIR 1966 SC 1427. In the absence of the legal representatives of the deceased-respondent the appellate court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. The effect of the abatement of an appeal is that the decree between the appellant and the deceased-respondent becomes final and the appellate court cannot, in any way, modify that decree directly or indirectly.

8. In the present case Mohan Lal Agarwal, the plaintiff No. 2 obtained a decree from the appellate court below against the defendant-appellant. Since the legal representatives of Mohan Lal Agarwal deceased have not been substituted in this appeal the decree in favour of Mohan Lal Agarwal has become final. The decree passed by the appellate court below is a joint decree in favour of all the plaintiffs and is indivisible inasmuch as it proceeds on a ground common to all the plaintiffs. The interests of the surviving respondents 3 to 6 and the deceased-respondent No. 2 were joint and indivisible. The impugned decree having become final so far as Mohan Lal Agarwal was concerned, the success of the appeal would lead to the passing of a decree which would be inconsistent and contradictory to the decree which has become final with respect to the same subject-matter between the appellant and the deceased-respondent. The first test mentioned heretofore is, therefore, satisfied. That being so, the appeal cannot be proceeded with and is to be dismissed.

9. The appeal is accordingly dismissed. In the circumstances of the case, I make no order as to costs.


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