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Krishna Chandra Agarwalla and ors. Vs. Shanti Prasad JaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberSuit No. 1342 of 1965
Judge
Reported inAIR1981Cal199
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 10 - Order 30, Rules 1 and 4; ;Partnership Act, 1932 - Section 69 and 69(2)
AppellantKrishna Chandra Agarwalla and ors.
RespondentShanti Prasad JaIn and ors.
Advocates:P.K. Das, Adv.
Cases ReferredHansraj Manot v. Gorak Nath Champa
Excerpt:
- .....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 thesuit, it would be necessary to join the legal representatives of the deceased as party to the suit.'6. hence in view of what has been stated earlier, i am unable to make an order to implead ajoy chandra agarwal as a party to this suit and also adding the name of the partnership firm vishamitra karyalaya as a co-plaintiff hut so far the recording of the death of the deceased trustees is concerned in view of my judgment reported in 1978 5 cwn p......
Judgment:
ORDER

Padma Khastgir, J.

1. This application has been taken out by Krishna Chandra Agarwal and Harish Chandra Agarwal for an order that the death of the original-plaintiff No. 2 Bijoy Chandra Agarwal be recorded and the reconstitution of the firm of Vishamitra Karyalaya and the board of the trustees of the said Rajendra Chhatrabash Samity as shown in the annexure 'B' be recorded and for other consequential reliefs analogous thereto. The present suit was filed by Krishna Chandra, Bijoy Chandra and Harish Chandra Agarwal on 29th of July, 1965 against the defendants for recovery of possession of the premises No. 14/1A, Sambhu Chatterjee Street, decree for Rs. 68,531.31 towards mesne profits and other reliefs. According to the petitioners at all material times Harish Chandra, Krishna Chandra and Bijoy Chandra Agarwal carried on business in co-partnership under the name and style of Vishamitra Karyalaya at 12, B. B. D. Bag. The said firm is a registered firm. On 8th of June, 1974 the said Bijoy Chandra Agarwal died. On the death of the said Bijoy Chandra Agarwal there has been a reconstitution of the said firm Vishamitra Karyalaya and Ajoy Chandra Agarwal had been a minor and was admitted to the benefits of the said partnership and by fresh deed of partnership dated 2nd of January, 1976 the said Ajoy Chandra Agarwal having attained the majority became a full fledged partner of the said firm. A copy of the new indenture of partnership hasbeen annexed to the petition. According to the petitioner on the death of Bijoy Chandra Agarwal the cause of action in the suit, has survived and/or devolved on the surviving partners and the right to proceed with the suit continues.

2. During the pendency of the suit the defendants Nos. 1, 3 and 5 have died. They are the trustees of the said Chhatrabas. At the time of the hearing the learned lawyer appearing on behalf of the respondent No. 2 Nathmal Himat-singka submitted that Mr. Himatsingka has also retired from the Board of Trustees. Hence the petitioner also prayed for recording the death of the deceased trustees which have taken place long time ago. The petitioner has stated in the petition that through inadvertence and oversight the death of the aforesaid parties could not be recorded.

3. Mr. P. K. Das, appearing in support of this application and first of all submitted that in view of the provision of Order 30, Rule 4 it shall not be necessary to join the representative of the deceased partner as party to the suit. Secondly he submitted that when there is a cause of action by the three partners on the death of one partner the cause of action does not abate but it vests on the other partner. Hence there is no abatement of the suit. Secondly it was submitted that at the most the suit has been filed by the partners by way of mis-description and in fact the suit should have been filed in the name of the firm. In any event that being a mistake and/or inadvertence on the part of the drafls-man that should be allowed to be rectified by way of amendment. It would appear that the present suit has been filed not by the partnership firm but by three individual persons against the trustees for recovery of possession and also for arrears of rent and mesne profits. From the notice of ejectment which gives the cause of action for the present suit it would appear that the notice has been given for and on behalf of Krishna Chandra Bijoy Chandra and Harish Chandra Agarwal, under Section 13 subsection (6) of the West Bengal Premises Tenancy Act as also under Section 106 of the Transfer of Property Act by Gulab Ch. Upadhyay, Advocate. From the service of the said notice the cause of action arose in favour of the three persons for and on whose behalf the said notice was given. Although it is mentioned in the said notice that the saidthree persons carried on business in copartnership under the name and style of Vishamitra Karyalaya but in fact the notice was given not on behalf of the firm but on behalf of the three individual persons. However, the validity of the said notice would be considered at the time of the hearing of the suit. At this interlocutory stage it is only necessary to find out on whose behalf the said notice was given. In the body of the notice it is also mentioned that the landlord are the three individual persons. If the suit had been filed by the three individual persons then on the death of one in the absence of the legal heirs and representatives of the deceased person the cause of action does not survive and/or devolve on the two surviving parties. The death of Bijoy Chandra Agarwal had taken place in the year 1974. The present application has been taken out not for the recording of the death of Bijoy Chandra Agarwal and/or bringing on record the legal heirs and representatives of the said Bijoy Chandra Agarwal but for bringing on record the name of Ajoy Chandra Agarwal who has been taken in as a partner in the new constituted partnership firm. In the said new partnership deed there is no clause whatsoever that the rights and liabilities of the said partners of the old partnership firm has been taken over by the new partners, under the reconstituted partnership firm. Hence the cause of action which arose in favour of Bijoy Chandra Agarwal has not been taken over by Ajoy Chandra Agarwal under the new constituted partnership firm. Hence bringing on record the name of Ajoy Chandra Agarwal as a new partner of the new constituted partnership firm would be of no help to the plaintiff. This application is not an application under Section 5 of the Limitation Act for condonation of delay and/or setting aside the abatement and there are no averments in the petition at all for such condonation and/or setting aside the abatement. Moreover the petition is silent about the other heirs and legal representatives of Bijoy Chandra Agarwal. Another difficulty arises in view of Section 69 of the Partnership Act. Section 69 sub-section (2) of the Partnership Act is a bar inasmuch as from the extract of the register as obtained on 26th of September, 1979 it would appear that the name of Ajoy Chandra Agarwal does not appear as a partner of the firm Vishamitra Karyalaya. Hence it ap-pears the present suit cannot be maintained and/or proceeded with by the two surviving partners as also Ajoy Chandra Agarwal, in view of such certificate given by the Registrar of firms where-from it would appear that the names of all the partners do not take place in the register of the firms and also in view of the express provision of Section 69 sub-sec. (2) of the Partnership Act, i.e., the partners whose names do not appear in the register of the firms cannot file a suit or proceed with the suit. In the case reported in (1962) 66 Cal WN 262, Hansraj Manot v. Gorak Nath Champa-lal it has been held that:

'A suit on behalf of a firm by certain persons or by a firm, may be validly instituted provided the firm is registered and the persons suing (which means the persons then suing) must have their names shown in the Registers of firms. The two conditions set forth in Section 69(2) of the Act are mandatory'.

4. If a person cannot proceed with the suit there is no point adding him as a party plaintiff to the suit. Moreover the present suit has been filed by the three individual persons and not by the partnership firm. Hence the provision under Order 30, Rule 4 have no application to this case. In this respect reference may be made to the case reported in : AIR1975All207 . As the suit has been filed by the three individual partners and not by the partnership firm the question of devolution of interest does not arise. It is a case of survivorship. The two other surviving partners being the brothers of Bijoy Chandra Agarwal the interest of the deceased partner is not represented by them. The heirs and legal representatives of the deceased party should be on the record. Although Ajoy Chandra Agarwal has consented to the petition being made the petition has in fact not been taken out by Ajoy Chandra Agarwal. Moreover the other legal heirs and representatives of the deceased Bijoy Chandra Agarwal are not present before this Court. The new reconstituted firm is not even registered under Section 69 of the Partnership Act.

5. In the case reported in : AIR1975All207 it has been held that:

'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 partnersof 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 provisions 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 accordant with Rule 1 of Order XXX, C. P. C. To such a suit the applicability of O. 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 thesuit, it would be necessary to join the legal representatives of the deceased as party to the suit.'

6. Hence in view of what has been stated earlier, I am unable to make an order to implead Ajoy Chandra Agarwal as a party to this suit and also adding the name of the partnership firm Vishamitra Karyalaya as a co-plaintiff hut so far the recording of the death of the deceased trustees is concerned in view of my judgment reported in 1978 5 CWN p. 1050 (sic). I am of the view that in that particular case Order 22, Rule 10 would apply and the petitioners are entitled to amendment to that effect. The death of the deceased trustees be recorded and the names of the new trustees be brought on record. Costs costs in the cause.


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