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Jagatjit Industrial Corporation Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectContract
CourtDelhi High Court
Decided On
Case NumberInterim Application No. 113 of 1973 and Suit No. 561 of 1967
Judge
Reported in1974RLR286
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 3; Contract Act, 1872 - Sections 54
AppellantJagatjit Industrial Corporation
RespondentUnion of India
Advocates: R.L. Aggarwal,; S.P. Aggarwal,; H.S. Dhir,;
Cases ReferredDharamdas v. Krishan Chand Hari Chand
Excerpt:
in a suit filed by the partnership firm against the union of india under order 22 rule 3 and order 39 of the civil procedure code, 1908, the effect of partners being dead was discussed - it was ruled that if all the partners were dead then in that case the rights of the partners devolved on the legal representatives - further the suit cannot be continued by legal representatives of only one of the partners - - in my opinion, the substantive law regarding devolution of joint rights is laid down by section 45 of the contract act, and the law enunciated there holds good in all circumstances......been move & under order 22 rule 3 civil procedure code for bringing on record as plaintiffs the legal representatives of ved prakash, one of the partners. in this application it is stated that the plaintiff-firm was constituted by three persons as partners, namely, jagat prakash, jai prakash and ved prakash. jagat prakash and jai prakash are stated to have died earlier and ved prakash is stated to have died on october 20, 1972. the application seeks to bring legal representatives of only ved prakash on record and not of the other two deceased partners. the application has been resisted on various grounds, inter alia, that the suit has abated for the reason that the legal representatives of jagat prakash and jai prakash were not brought on record within limitation and the legal.....
Judgment:

Prakash Narain, J.

(1) M/S. Jagatjit Industrial Corporation describing itself in the heading of the plaint as a firm registered under the Indian Partnership Act, and carrying on business as Re-Rollers, Founders & Fabricators, at Kapurthala filed a suit against Union of India and two others for recovery of Rs. 29,000.00. In the body of the plaint no further particulars of the partnership were given. It seems that the suit was filed in the name of the partnership firm by virtue of the provisions of Order 30 of the Code of Civil Procedure.

(2) I.A. 113 of 1973 has now been move & under Order 22 rule 3 Civil Procedure Code for bringing on record as plaintiffs the legal representatives of Ved Prakash, one of the partners. In this application it is stated that the plaintiff-firm was constituted by three persons as partners, namely, Jagat Prakash, Jai Prakash and Ved Prakash. Jagat Prakash and Jai Prakash are stated to have died earlier and Ved Prakash is stated to have died on October 20, 1972. The application seeks to bring legal representatives of only Ved Prakash on record and not of the other two deceased partners. The application has been resisted on various grounds, inter alia, that the suit has abated for the reason that the legal representatives of Jagat Prakash and Jai Prakash were not brought on record within limitation and the legal representatives of Ved Prakash would have no right to continue with the suit by themselves. I

(3) The first question that requires determination is whether in a suit brought in the name of a partenership firm if all the partners die during the pendency of the suit, the legal representatives oonly one partner can continue the suit. It is not seriously disputed that Jagat Prakash died on May 28, 1968 and Jai Prakash died on May 21, 1971. The contention on behalf of the applicants, Smt. Padmawati and Ajay Kumar, is that by virtue of the provisions of rule 4 of Order 30, it is not necessary to join the legal representatives of Jagat Prakash and Jai Prakash as parties to the suit The contention is that since section 45 of the Indian Contract Act stands modified qua suits brought in a firm name, if one of the partners dies whether before the institution or during the pendency of a suit it is not necessary to joint i.e legal representatives of the deceased as a party to the suit. So. the question arises whether section 45 of the Contract Act stands modified as contended. In my opinion, the substantive law regarding devolution of joint rights is laid down by section 45 of the Contract Act, and the law enunciated there holds good in all circumstances. There is, however, one exception to that general law and that is enunciated in rule 4 of Order 30 of the Code of Civil Procedure. The clear effect of section 45 of the Contract Act is not modified save as it appears in rule 4 Order 30 As was held in Hari Singh v. Karam Chand, A I.R. 1927 Lah 115, a parthership firm is not a juristic person but only a compendious expression to describe the members constituting it Normally, all the partners of a firm would be required to join in sueing but for the provisions of Order 30 rule 1 Indeed, there is no bar to their doing so. Order 30 is thus only an enabling provision and permits the partners to sue and be sued in the firm name. If a suit is brought in the firm name the individuality of the partners is not merged in that of the firm. To sue or be sued in a firm name is only a convenient mode prescribed by the code. Thus, Order 30 rules 1 and 4 only deal with the form of the suit and do not affect the question as to whether either the partners of the representatives of a deceased partner were or were not necessary parties to the suit. I am fortified in coming to this conclusion by a bench decision of the Madhya Pradesh High Court in Pyarelal v. Modi Sikhardhand, A.I.R. 1956 M.P. 89.

(4) A firm has been recognised by Order 30 C.P.C. as a unit or entity for purposes of civil action. By virtue thereof where one of the partners is still alive and the other partners are dead, there is no disability on the part of the surviving partners in filing or continuing a suit by or against the firm. Such a right, however, is resticted only to the partners and is not available to their legal representatives. The legal representatives of the partners would be governed by the provisions of section 45 of the contract Act. So, where all the partners die either before the institution or during the pendency of a suit, the right to enforce a promise jointly which existed with the partners devolves on the legal representatives of all the partners jointly. The legal representatives of only one of the deceased partners, where all the partners are dead, cannot enforce a joint promise or a joint right against a promisee. As laid down by section 45 of the Contract Act the right to claim performance of a promise in the case of joint promises rests with them all during their joint lives. It follows, thereforee, that all the joint promises should sue upon the promise. If all the partners are alive they have to sue jointly or in the firm name as provided by Order 30 If one of the partners is dead the suit my still be continued by the surviving partner or partners by virtue of the provisions of rule 4 of Order 30 If however, all the partners are dead the rights of the partners devolve on the legal representatives of all the partners who would become joint promises and a suit only by some of the joint promises cannot proceed.

(5) Mr. R. L. Aggarwal, the learned counsel for the applicants, referred to a full bench decision of the Punjab High Court in Dharamdas v. Krishan Chand Hari Chand, . It was held in this case that in a suit brought by a firm through its partner if one of the partners died during the pendency of the appeal or the suit the appeal or the suit would not abate though legal representatives of the deceased partner were not brought on record. The' decision relied upon has no bearing in the present case as here admittedly all the partners hive died during the pendency of the suit. The right to sue, thereforee, devolved on the legal representatives of the three partners and the suit cannot be continued by the legal representatives of only one of the partners by invoking the provision of rule 4 of Order 30 C.PC. I, thereforee, hold th,at inasmuch as legal representatives of Jagat Prakash and Jai Prakash were not imp leaded within limitation and the suit cannot be continued only by the legal representatives of Ved Prakash the same has abated and is liable to be struck off the record of pending suits.

(6) In view of my finding given above it is not necessary to comment upon the objection of the defendants that the applicants are not the legal representatives of Ved Prakash. it is also not necessary to comment upon the statement given by the learned counsel for the plaintiff on November 28, 1972 that the suit as such could continue in spite of the death of the three partners as the fourth partner, Bishamber Dass, is still alive and that in view of that it was not necessary to take steps to bring legal representatives of the three deceased partners on record. Indeed, by I A, 113 of 1973 this stand was modified as it was urged that the plaintiff firm had only three partners. Application dismissed


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