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2008 DIGILAW 1269 (MP)

Suresh Kumar v. Baluram (d) through L. Rs.

2008-11-03

R.S.GARG, S.K.SETH

body2008
ORDER Garg, J. -- 1. The original respondent No.1 Baluram Sio Nathulal Goyal filed a civil suit against Motilal Sio Prahladji Agrawal and Mis Ramdhan Kisanlal with the allegation that the original defendant No.1 Motilal was inducted as a tenant but during the tenancy, he sub-let part of the suit property to original defendant No.2. It is worth noticing that the suit was filed in the year 1961 and is still pending. 2. It is also to be noted that the original defendant No.2 M/s Ramdhan Kisanlal was joined as a partnership firm with its two partners viz. Ramdhan Sio Kishorilal and Kisanlal Sio Ramnath Agrawal. Somewhere in January, 1997, one Suresh Kumar filed an application with a submission that Ramdhan Sio Kishorilal had expired long back, his legal representatives have not been brought on record, the suit had abated and in case the Court finds that the suit had not abated, then a direction be issued to the plaintiff to correct the record 3. On 29.9.2003, the plaintiff moved an application under Order 22 Rule 4 CPC for substitution of the legal representatives. However, separate applications under Order 22 Rule 9 CPC for setting aside abatement and under section 5 of the Limitation Act for condonation of delay were not filed. On 10.12.2003, a consolidated application under Order 22 Rule 9 CPC and section 5 of the Limitation Act came to be filed. The applications were opposed tooth and nail. However, by impugned order dated 7.7.2007, the learned trial Court allowed the application, therefore, the legal representatives of Ramdhan S/o Kishorilal have come to this Court under Article 227 of the Constitution of India. 4. Shri Jain, learned counsel for the petitioner submitted that as appropriate application was not filed up to the year 1997, one of the legal representatives filed an application before the Court to bring the fact of death to the notice of the Court and again for a period of six years, the plaintiff did not make an application for substitution of the legal representatives. According to Shri Jain the suit had abated and the applications were miserably misconceived. The submission is that the trial Court could not have granted the application. 5. According to Shri Jain the suit had abated and the applications were miserably misconceived. The submission is that the trial Court could not have granted the application. 5. Shri Yogesh Mittal, learned counsel for the respondent No.1 (since deceased) has submitted that defendant No.2 Mis Ramdhan Kisanlal was a partnership firm and it is settled law that on the death of a partner, the suit against the firm would not abate. His further submission is that M/s Ramdhan Kisanlal was not a tenant in the property but was added as a party defendant with an allegation that they were inducted as sub-tenant in the property. His further submission is that joinder or non-joinder of sub-tenant to the suit proceeding would be within the discretion of the plaintiff, the plaintiff being the dominus litus. 6. We have heard the parties. 7. It is settled law that a sub-tenant would not be necessary party in a suit for eviction against the original tenant. The sub-tenant may be joined as a formal party to the proceeding so that the future complications are avoided. In the present case as M/s Ramdhan Kisanlal was a partnership firm and as it was joined as a party defendant in its capacity as subtenant, we do not think that on the death of one or all of the partners, the suit would abate against the firm. 8. Order 30 Rule 4 of the Code of Civil Procedure reads as under: (4) Right of suit on death of partner -- (1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872 (9 of 1872), 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 survivor or survivors. 9. (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 survivor or survivors. 9. A fair understanding of reading of the rule would make it clear that where two or more persons may sue or be sued in the name of a firm under the provisions of other rules of Order 30 and any such persons die, during the pendency of any suit, it shall not be necessary to join the legal representative's of the deceased as a party to the suit. 10. Shri Jain, however, submitted that if both the partners of the firm die then there would be no representation of the firm, which was otherwise also an unregistered firm, and in such a case, the plaintiff was obliged to make application for substitution of the legal representatives of the deceased. . 11. A perusal of sub rule (2) of Rule 4 of Order 30 of the CPC would make it clear that nothing in sub rule (1) of Rule 4 shall limit or otherwise affect any right, which the legal representatives of the deceased may have to apply to be made a party to thi? suit. If such is the law, then the legal representatives of the deceased partner could make an application for their substitution and in such a case, the Court could allow the application and permit the legal representatives of deceased partners to be brought on record. 12. It would be trite to say that once a decree is passed against a tenant, then whether a sub-tenant was a party or not to the proceeding, he woul4 be bound by the decree. 13. After hearing learned counsel for the parties, we are unable to, hold that the· order passed by the learned Court below calls for any interference. 14. The petition is dismissed with cost quantified at Rs. 2,5001- to be deposited by the petitioner with the trial Court within three weeks from today. After the cost is deposited with the trial Court, it shall be paid to the plaintiff through his legal representatives. 15. 14. The petition is dismissed with cost quantified at Rs. 2,5001- to be deposited by the petitioner with the trial Court within three weeks from today. After the cost is deposited with the trial Court, it shall be paid to the plaintiff through his legal representatives. 15. The trial Court is hereby directed to conclude the proceedings in the suit within a period of six months from the date of production of copy of this order.