Baikunth Prasad Verma v. Lachmi Paper House — 1989 DIGILAW 409 (PAT)

JUDGMENT Binod Kumar Roy, J.-The plaintiff is the petitioner who challenges an order passed by the court below by which his suit for eviction of the firm-defendant no. 1 and its partners defendant nos. 2 to 4 has weld to have been abated due to non-substitution of the legal representatives of the deceased defendant no. 3 on an application filed by the remaining defendants. 2. The facts lie in a very narrow compass. 3. From a perusal of the plaint it appears that the suit was filed on the grounds, inter alia, that the defendants had damaged the suit premises and that the premises is required for personal necessity. It further appears that the plaintiff alleged that an the defendants were inducted as tenants of the suit premises. However, in paragraph 5 of their written statement, the defendants had categorically stated that the tenancy in question was in favour of the partnership firm. The firm is defendant no. 1. It further appears that defendant no. 3 died on 17th April, IS85 leaving behind his widow two daughters and a minor son. Even though Order XXII, Rule 13A cast a duty on the learned Advocate of defendant no. 3 to inform the Court about the death of a party it appears that no information was given to the Court in regard to the death of defendant no. 3 and that it was only on 9th December, 1985-that is to say-after a period of about eight months, a petition was filed for pissing an order of abatement on account of non-substitution of the legal representative of deceased defendant no. 3. To the said petition dated 9.12.1985 the plaintiff put a rejoinder petition praying to reject the same and also to allow substitution of the heirs of the deceased defendant no. 3 alleging therein that the right to sue survives as per the case of the defendants the firm, defendant no. 1 is the tenant; that the plaintiff had no knowledge about the death of defendant no. 3; that under Order XXII, Rule 10A it was the duty of other defendants and their learned lawyer to inform the Court regarding the death of defendant no 3 in time; and that if deemed necessary, the substitution be allowed invoking section 5 of the Limitation. Act and Order XXII of the Civil Procedure Code. 3; that under Order XXII, Rule 10A it was the duty of other defendants and their learned lawyer to inform the Court regarding the death of defendant no 3 in time; and that if deemed necessary, the substitution be allowed invoking section 5 of the Limitation. Act and Order XXII of the Civil Procedure Code. The parties were heard and the court below by the impugned order was pleased to hold that the suit had abated due to non-substitution of the heirs of the deceased defendant no. 3, who, as per the case of the parties, has been sued in the capacity of one of the tenants and his tenancy is not separable and that through a rejoinder petition a• prayer for substation cannot be allowed. 4. Mr. S.C. Ghose, learned counsel appearing for the petitioner, submits as follows :- (i) On the averments made in paragraph 5 of the written statement filed on behalf of all the defendants if the firm is the tenant it was no longer open for the defendants to contend that defendant no. 3 was one of the co-tenants. The court below has also erred in law in holding that defendant no. 3 was a necessary party to the suit. (ii) The court below has completely misconceived about its jurisdiction in regard to section 5 of the Limitation Act and Order XXII, Rules 4 and 9 of the Code and in not appreciating that the rejoinder petition filed by the petitioner contained all necessary facts of a substitution petition praying to condone the delay, set aside the abatement and to allow substitution of the legal representatives of the deceased defendant no. 3 and has erred in holding that there was no application filed for that purpose. In the interest of justice the substitution be allowed by me. 5. Mr. N. K. Agrawal, leaned counsel appearing for the opposite party, on the other hand, contends that defendant no. 3 having been sued as a co-tenant, the court below was correct in passing the order of abatement when admittedly no separate petition was filed on behalf of the plaintiff• petitioner praying for substitution and that the reasons given by the court below in allowing the prayer of the opposite party and in rejecting the prayer of the petitioner are sound in law and are not vitiated on account of any jurisdictional error. 6. 6. In my view the entire approach of the court below in disposing of the respective prayers of the parties was erroneous. 7. Rules 1 and 4 of Order XXX of the Code run as follows: "R. 1. Suing of partners in' name of film.-"(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 accruing 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 as 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 of such persons. "R. 4. Right of suit on death of partner.-( J) Notwithstating anything contained in . Section 45 of the Indian Contract Act, 1972, 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 surviver or survivers." 8. Rule 1 of Order XXX of the Code clearly permits suing of partners in the name of the Firm. Mr. Agrawal could not dispute nor denied the stand of the defendants 1 to 4 taken in paragraph 5 of their written statement that as per their case it was the firm which alone was the tenant. Rule 1 of Order XXX of the Code clearly permits suing of partners in the name of the Firm. Mr. Agrawal could not dispute nor denied the stand of the defendants 1 to 4 taken in paragraph 5 of their written statement that as per their case it was the firm which alone was the tenant. In the aforesaid view of the matter it was no longer open for them to set up the plea of abatement due to non-substitution of the heirs of the deceased defendant no. 3 who was merely one of the partners of the firm. As per the provisions of Order XXX of the Code it is clear that when two or more persons are sued in the name of the firm and if one of them dies during the pendency of the suit it shall not be necessary to implead his heirs and/or legal representatives as parties to the suit, It was no bodies case in the court below or even before me that on the death of defendant no. 3 the partnership was dissolved or his heirs do not desire to join the partnership firm. 9. In the aforementioned view of the matter, I am of the view that it was not permissible for defendants to contend that the suit had abated because of non-substitution of the legal representatives of the deceased defendant no. 3. I am further of the view that the suit had not abated on account of non-substitution or the legal representatives of the deceased defendant no. 3 as the right to sue had survived and still survives. My view finds considerable support also from a Full Bench judgment of the Punjab and Haryana High Court in Dharamdas Gokaldas v. Krishan Chand, A. I. R. 1966 Punjab 40. 10. I also find considerable force in the second submission of Mr. Ghose. The rejoinder petition contains the necessary prayer to substitute the legal representatives of the deceased defendant no. 3 after setting aside abatement and condoning the delay alleging that the plaintiff had no prior knowledge. In Prem Raj v. Ram Charan. 10. I also find considerable force in the second submission of Mr. Ghose. The rejoinder petition contains the necessary prayer to substitute the legal representatives of the deceased defendant no. 3 after setting aside abatement and condoning the delay alleging that the plaintiff had no prior knowledge. In Prem Raj v. Ram Charan. A. I. R. 1974 S. C. 968 at 972 it was laid down by the Supreme Court that "making of a request to a person is of the essence of an application" after quoting from Shorter Oxford English Dictionary that an application is "the making of an appeal, request, or petition to a person; the request so made." In State of Punjab v. Shamlal Murari, A. I. R. 1976 S. C. 1177 it was laid down by the Supreme Court as follows: "Processual law is not to be a tyrant hut a servant, not an• obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice... After all, Courts are to do justice. not to wreck this end product on technicalities." In Sital Prasad Saxena v. Union of India and others. A. I. R. 1985 S. C. 1. while dealing the question of abatement under Order XXII of the Code and allowing substitution at the Supreme Court stage, it was laid down as follows: "Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties." In Collector, Land Acquisition Anantnag v. Katiji, A. I. R. 1987 S. C. 1858, the Supreme Court has observed as follows: "When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested rights in injustice being done because of a non-de1ibcrate delay." + X X "It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” The passages quoted above were reiterate once again by the Apex Court in G. Ramegowda v. Special Land Acquisition Officer, Bangalore. A. I. R. 1988 S. C. 891. A. I. R. 1988 S. C. 891. It is settled law the label is nothing so long as the facts stated attract the correct provision of law (see Ahmad Raza Khan v. Bhola Prasad 1979 B. B. C.J. 235 at 241) and that if there is a power, exercise of it under a wrong provision does not vitiate the exercise of power in question (see J. K. Steel Ltd. v. Union or India. A. I. R. 1970 S. C. 1173 at 1188). 11. Though two prayers in one Petition are not permissible the question of non-abatement of the suit and the alternative prayer for substitution after setting aside the abatement, if any, were not distinct subject-matters in terms of Rule 19 Chapter I Part 1 or the Civil Court Rules of the High Court of Judicature at Patna (Civil), I am further of the view that the rejoinder petition having contained all the necessary facts and ingredients invoking section 5 of the Limitation Act as well as Order XXII, Rules 4 and 9 of the Code of Civil Procedure the Court was not correct in observing there was no application filed on behalf of the petitioner praying to set aside the abatement and allow substitution of the legal representatives after condoning the delay. 12. The court below has also erred in not considering about the non-giving of any information to it about the death of defendant no. 3 in view of Order XXII, Rule 10A of the Code of Civil Procedure. 13. The legal representatives of the deceased defendant no. 3 are already parties (opposite party nos. 5 to 8) to this revision application. Opposite party no. 5 has been represented through Mr. Agrawal himself and opposite party nos. 6 to 8, the minors, through the D. R. Guardian, who also have been heard. 14. I am satisfied of the correctness of the facts stated in the rejoinder petition of the petitioner, which has also not been disputed by the opposite parties and I hold that there was sufficient cause in not making the prayer for substitution of the legal representatives of the deceased defendant no. 3 earlier and condone the delay. 15. I am also of the view that there would be a failure of justice if I refuse to interfere with the impugned order. 16. 3 earlier and condone the delay. 15. I am also of the view that there would be a failure of justice if I refuse to interfere with the impugned order. 16. For the reasons aforesaid, the impugned order is set aside and the prayer for substitution made by the petitioner in the court below as well as before me is aha allowed. The court te10w is directed to substitute opposite party nos. 5 to 8 in place of deceased defendant no. 3. This application is allowed accordingly, but, in the peculiar facts and circumstances, there shall be no order as to costs. 17. Since the suit is of the year 1983 it would be just and proper that the trial court takes up its hearing and concludes its trial strictly adhering to the amended Order XVII of the Code of Civil Procedure.