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2005 DIGILAW 2373 (RAJ)

Jamnalal Rooplal Devpura v. Dalpat Singh

2005-09-07

GOPAL KRISHAN VYAS

body2005
Judgment Gopal Krishan Vyas, J.-Impugning the order 13.01.2003 passed by Additional Civil Judge (Jr. Dn.), Bhilwara in Civil Suit No. 335 of 1982, the defendant-petitioner has challenged its validity on the ground that after the death of defendant Jamnalal, the petitioner being one of the partners of the firm is entitled to contest the suit. By order dated 13.01.2003, the trial Court allowed the plaintiff s application to restrain the petitioner from contesting the case on the ground that the suit has been instituted against defendant No. 1, M/s Jamnalal Rooplal, and No. 2 Jamnalal and, therefore, after the death of defendant Jamnalal, the Court has already appointed Administrator General to contest the suit for and on behalf of the firm and since Rooplal is not a necessary party in the suit, therefore, besides the Administrator General it is not necessary to allow any other person to contest the suit. 2. I have heard learned Counsel for the parties and perused the order impugned. 3. It is not disputed that petitioner Rooplal is partner of the defendant firm. However, argument against the petitioner is advanced that after the death of Jamnalal the partnership has come to an end and, therefore, there is no question to allow Rooplal to represent the firm. Counsel for the respondents argued that once application filed under Order 1 Rule 10, CPC by Rooplal has been dismissed then there is no ground to allow him to represent the firm and he has no right to enter into the proceedings. 4. In the suit, on 28.01.1994, the trial Court directed the Counsel for the defendant No. 1 firm to act Administrator General for and on behalf of deceased defendant No. 2 in his interest. On 15.02.1994, Counsel for defendant No. 1 firm expressed his inability to act as Administrator General for and on behalf of deceased defendant No. 2 in the suit proceedings and, therefore, after hearing the parties the Court appointed Shri Rajkumar Patani, Advocate to act Administrator General for the deceased defendant No. 2 under Order 22 Rule 4A, CPC. 5. Admittedly, the petitioner is one of the partners of the defendant firm which was sued by the plaintiff in the suit alongwith its partner Jamnalal. 5. Admittedly, the petitioner is one of the partners of the defendant firm which was sued by the plaintiff in the suit alongwith its partner Jamnalal. After the death of the defendant Jamnalal, though the Court appointed Administrator General under Order 22 Rule 4A, CPC to look after the interest of the deceased defendant in the suit, being the surviving partner of the sued firm Rooplals right to represent the firm in the proceedings cannot be disputed. In my considered opinion, while passing the impugned order the learned trial Court has committed grave error in appreciating that whereas Administrator General has been appointed in the case, therefore, none else besides him reserves right to be heard. In fact, the Administrator General was appointed under Order 22 Rule 4A, CPC to look after interest of the deceased defendant No. 2 Jamnalal in the suit and, therefore, the appointment of Administrator General did not come in way of the right of the firms surviving partner Rooplal to represent the firm. 6. In view of the aforesaid, the trial Court erred in law in restraining Rooplal from representing the firm. Accordingly, the revision petition is allowed and order impugned dated 13.01.2003 is set aside. The trial Court is directed to allow Rooplal to be impleaded in the proceedings on behalf of the firm being its partner and not in his personal capacity as his application under Order 1 Rule 10, CPC has already been rejected. 7. No order as to costs.