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2018 DIGILAW 1650 (RAJ)

Salim Chauhan v. Abdul Majid

2018-08-06

ARUN BHANSALI

body2018
JUDGMENT Arun Bhansali, J. - This revision petition is directed against order dated 31.10.2002 passed by Additional Civil Judge (Junior Division) No.6, Jodhpur, whereby, the application filed by petitioner under section 151 CPC has been rejected. 2. A suit for accounts of partnership firm was filed by Abdul Majid, Abdul Ajij & Abdul Hameed against petitioner Saleem Chouhan, Ibrahim Khilji & Abdul Hanan. 3. Written statement was filed. Statements of Abdul Hameed and petitioner Saleem Chouhan were recorded and the suit was dismissed on 18.09.1995, against which, an appeal was filed before District Judge, Jodhpur, which appeal was decided on 06.09.2001, whereby, the judgment and decree passed by the trial court dated 18.09.1995 was set aside and after framing an additional issue No. 1A the matter was remanded back to the trial court for decision on merits. 4. Whereafter an application was filed by the petitioner, inter alia, indicating that plaintiff Abdul Hameed had died on 02.03.2000, whereas, the appeal was decided on 06.09.2001 and, therefore, the appeal and suit had/has abated as a whole and the same were liable to be dismissed. 5. The trial court by its impugned order dated 31.10.2002 while relying on provisions of Order 22, Rule 2 CPC came to the conclusion that the rights of the plaintiffs were individual rights and the same cannot come to an end by death of one of the plaintiffs as their right to sue survives and, therefore, on account of death of plaintiff Abdul Hameed the suit would not abate and, consequently, rejected the application. 6. It is submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the application filed by the petitioner, inasmuch as, in a suit pertaining to partnership, all the partners are necessary parties and once one of the partners had died and his legal representatives were not brought on record, the suit was liable to be dismissed as a whole. It was contended that the trial court was not justified in refusing to dismiss the suit as abated by relying on provisions of Order 22, Rule 2 CPC, which have no application as the suit for accounts was joint in nature and further looking to the nature of additional issue framed, the same cannot be decided in absence of the legal representatives of the deceased partner and, therefore, the order impugned deserves to be quashed and set aside. 7. Learned counsel appearing for the respondents supported the order impugned. It was submitted that the suit was filed by the three plaintiffs for their individual rights and even if one of the plaintiffs had died during pendency of the appeal/suit, the same cannot lead to the abatement of the suit as a whole on account of non-bringing on record the legal representatives of the deceased partner and, therefore, the order impugned does not call for any interference. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. Admittedly, the suit has been filed by the plaintiffs way back in the year 1984 for accounts of the partnership firm, fixing the shares of the partners and for declaration. Initially, the suit was dismissed and on appeal the matter was remanded back to the trial court by framing an additional issue. 10. One of the appellants-plaintiffs Abdul Hameed had died during pendency of the first appeal, however, the said fact was not brought to the notice of the appellate court and the appeal came to be allowed. When on remand the matter was pending before the trial court, the present application came to be filed by defendant Saleem Chouhan seeking dismissal of the suit as abated on account of death of one of the plaintiffs and failure to bring on record his legal representatives. 11. It is well settled that the failure to bring on record the legal representatives of one of the plaintiffs may or may not result in abatement of the suit as a whole. Suit as a whole can abate only if the cause of action is joint and indivisible. 12. 11. It is well settled that the failure to bring on record the legal representatives of one of the plaintiffs may or may not result in abatement of the suit as a whole. Suit as a whole can abate only if the cause of action is joint and indivisible. 12. In the present case, all the three partners-plaintiffs had independent rights in the partnership firm and on account of death of one of the plaintiffs, once legal representatives were not brought on record then at best the right of the deceased plaintiff would stand defeated but surely it cannot defeat the rights of other plaintiffs, who had independent rights in the subject matter of the partnership firm. 13. Provisions of Order 22, Rule 2 CPC clearly envisage a situation where there are more plaintiffs than one and if any of them dies and where the right to sue survives to the surviving plaintiffs, the suit can proceed at the instance of the surviving plaintiffs and the same cannot be dismissed as abated on account of failure to bring on record the legal representatives of deceased plaintiff/s. 14. In view of the above fact situation, the order passed by the trial court does not call for any interference. There is no substance in the revision petition and the same is, therefore, dismissed.