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Shambhu Dayal Vs. Chunnilal Devkinandan and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 102 of 1979
Judge
Reported inAIR1980Raj69
ActsCode of Civil Procedure (CPC) , 1908 - Order 30, Rule 4; Partnership Act, 1932 - Sections 47
AppellantShambhu Dayal
RespondentChunnilal Devkinandan and ors.
Advocates: H.C. Rastogi, Adv.
DispositionPetition dismissed
Cases ReferredIn Gajanand v. Sardarmal
Excerpt:
- - rastogi, learned counsel for the petitioner-defendant i am satisfied that this suit has been brought in the name of the firm and as such it is fully covered by the provisions of order xxx, rule 4, c......others (respondents 4, 5 and 6 herein) for recovery of rs. 11516.86. during the pendency of the suit, chunnilal died on june 5, 1976. his legal representatives were not brought on the record within the prescribed period of limitation. the surviving plaintiffs represented to the trial court that since they were suing as parties and the suit had been brought in the name of the firm, it was not necessary to join the legal representatives of chunnilal deceased as parties to the suit. the trial court agreed and consequently ordered on january 28, 1977, that chunnilal's name be deleted from the array of plaintiffs in the suit. subsequently, on july 21, 1978, the defendants made an application for an orderthat since the legal representatives of chunnilal deceased had not been brought on the.....
Judgment:
ORDER

K.S. Sidhu, J.

1. This petition of revision under Section 115, Civil P. C. by the defendant is directed against the order dated August 1, 1978, passed by the learned Additional District Judge No. 2, Alwar, whereby the learned Judge dismissed the defendant's application dated July 21, 1978 and consequently refused to hold that the suit had abated.

2, The facts material for the decision of this petition are simple. M/s. Chunnilal Devkinandan, a partnership firm registered as such under the Partnership Act, and its three partners, namely, Devkinandan, Chunnilal and Brijendra Kumar, arrayed as plaintiffs 1, 2, 3 and 4 respectively, sued Shambhu Dayal, the petitioner herein and three others (respondents 4, 5 and 6 herein) for recovery of Rs. 11516.86. During the pendency of the suit, Chunnilal died on June 5, 1976. His legal representatives were not brought on the record within the prescribed period of limitation. The surviving plaintiffs represented to the trial court that since they were suing as parties and the suit had been brought in the name of the firm, it was not necessary to join the legal representatives of Chunnilal deceased as parties to the suit. The trial court agreed and consequently ordered on January 28, 1977, that Chunnilal's name be deleted from the array of plaintiffs in the suit. Subsequently, on July 21, 1978, the defendants made an application for an orderthat since the legal representatives of Chunnilal deceased had not been brought on the record, within ''the prescribed period of limitation, the suit had already abated. By its order, dated, August 1, 1978, the trial court dismissed this application on the view that since the cause of action pleaded in the suit had accrued to the firm and that since in fact the suit had been brought in the name of the firm, it Was not necessary to join the legal representatives of Chunnilal deceased as party to the suit,

3. After going through the impugned order and hearing Mr. Rastogi, learned counsel for the petitioner-defendant I am satisfied that this suit has been brought in the name of the firm and as such it is fully covered by the provisions of Order XXX, Rule 4, C. P. C. That being so, the legal re-presentatives of Chunnilal deceased need not have been joined as parties to this suit.

4. Mr. Rastogi, however, contended that since all the partners of the firm had joined as plaintiffs in bringing the suit, the impleadment of the firm as additional plaintiff was a mere surplusage and that therefore such a suit cannot be said to have been filed in accordance with the provisions of Order XXX, Rule 1, C. P. C. He further contended that since in the premises the suit cannot be treated as having been brought in the name of the firm, it is not covered by the provisions of Order XXX, Rule 4 and since it is not so covered, the applicability of Order XXII to it is not excluded. Hence, so runs the argument, it was necessary to join the legal representatives of Chunnilal deceased as parties to this suit. Counsel cited M.S. Pearl Sound Engineer v. Pooran Chand, AIR 1975 All 207 hi support of this line of argument advanced by him.

5. With respect, I have not been able to appreciate the reasoning in the cited case. The suit in that case had very much been brought in the name of the firm, and still the learned Judge held that it should be deemed not to have been brought in the name of the firm. The impleadment of the firm as a party-plaintiff, according to the learned Judge, was a mere 'surplusage' because the partners of the firm had also participated in the institution of the suit as plaintiffs. If this line of reasoning is correct it would boomerang, foropponent may legitimately ask why not treat the inclusion of partners, rather than the firm, as surplusage, in fact, this Court did hold somewhat likewise in Ramrich Pal v. Bikaner Stores Supply and Trading Co. AIR 1966 Raj 187, observing that if the suit had in fact been filed by the firm, the impleadment of its partners as plaintiffs in addition to it may be treated 'as a mere formality'.

6. Moreover, so far as this Court is concerned, the matter stands concluded on a different reasoning which, if I may say so with respect, is based on unassailable legal premises. In Gajanand v. Sardarmal, AIR 1961 Raj 223, a Division Bench of this Court speaking through Bhandari, J. (as his Lordship then was) held that the provisions of Order XXX are enabling provisions and they do not make it compulsory for the partners to sue' in the name of the firm. This Court further held that if a suit is not filed in the form provided in the name of the firm, it can be brought in the name of all the partners of the firm and if one of the partners dies during the pen-dency of the suit, the remaining partners can continue the suit and there is no necessity of the legal representatives of the deceased partner to be brought on record. This Court deduced this conclusion from Section 47 Partnership Act which recognised that after the dissolution of a firm by the death of a partner, the remaining partners may represent the dissolved firm including the interest of the deceased partner to recover any debt due to the firm. This authority was subsequently followed by Shingal J. (who now adorns the Supreme Court) in Ramrich-pal's case (supra).

7. For all these reasons, I am of opinion that this petition is without any merit and therefore deserves to be dismissed in limine. I would order accordingly.'


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