IMPORTANT POINT
Sub-rule (2) of Rule 4 to Order 30 CPC does not creat any right as such for a legal representative to get impleaded in a suit, but it only operates as an exception to sub-rule (1) and Rule 4(2) of Order 30 CPC, cannot come into operation in a situation where Order 1 Rule 10 of the Code cannot be invoked.

JUDGMENT

Thomas, J.-Leave granted.

2. A landlord has come up in challenge of an order passed by a Single Judge of the Madhya Pradesh High Court at Jabalpur, by which the application of first respondent to get himself impleaded as a party in a suit has been granted.

3. Facts are these :

Appellant - landlord filed the suit for eviction of his tenant (M/s. Hanuman Prasad Shriram - a partnership firm) from a building leased out to the firm on the two grounds envisaged in Section 12(1)(a) & (f) of the Madhya Pradesh Accommodation Control Act, 1961. The suit was contested by the firm and written statement for the firm was signed by one of its partners (Motiram). During the pendency of the suit, first respondent in this appeal (who is the son of Hanuman Prasad - another partner of the firm who died) filed an application under Order I Rule 10(2) of the Code of Civil Procedure (for short the Code ) to get himself impleaded as an additional defendant in the suit. The application was dismissed by the trial court against which first respondent filed a revision before the District Court, but the revision was dismissed on 15.3.1994. First respondent filed a second application stating it to be under Order 30 Rule 4 of the Code, for getting himself impleaded. However, that application was also dismissed by the trial court. He then filed a writ petition under Article 227 of the Constitution challenging the earlier order passed by the District Court on 15.3.1994 as well as the latter order passed by the trial court dismissing his second application. The writ petition was later converted into a revision petition. During the pendency of the said revision the suit filed by the plaintiff was decreed by the trial Court on 26.5.1994 and the decree was confirmed in appeal by the District Court on 29.11.1994. But learned Single Judge passed the impugned order on 30.1.1995, allowing the second application of the first respondent.

4. It is rather strange that learned Single Judge allowed a person to be impleaded in a non-pending lis. This factual position is not in dispute that on the date of the impugned order the suit or the appeal was not pending before any court at all. This is not a case where learned Single Judge was not aware of the fact that suit was decreed by the trial court and that decree was later confirmed by the district Court in appeal. We have noted from the impugned order itself that learned Single Judge was informed of the aforesaid development. However, an observation has been made in the order that it is open to the first respondent to proceed with his remedy in accordance with law.

5. As no suit was pending either in the trial court or in the appellate court when the High Court took up the revision of the first respondent for argument what was the need or occasion to pass an order for impleading a person as a new party in the suit? The revision should only have been dismissed as infructuous. Even otherwise, the court should have been very circumspect in dealing with the application of a third party seeking leave to become party in the suit, when the plaintiff, who is the dominus litis of the suit, is opposed to it. If the consequence of such addition would involve a de novo trial, the court should normally have disallowed the application. Way back in 1931 the Privy Council did not allow an application for impleadment on the ground that such a course might throw open a de novo trial of the suit, even after noticing that the party sought to be impleaded was not merely a proper party but a necessary party in the suit. Naba Kumar Hazra and Anr. v. Radhashyam Mahish and Ors.1. Here, even the first respondent has no case that he is a necessary party to th suit.

6. That apart, even on merits, first respondent s application filed under Order 30 Rule 4 is not maintainable on the facts of this case. The said Rule is quoted below :

"4. Right of suit on death of partner.- (1) Notwithstanding anything contained in Section 45 of the Indian Contract Ac