Heard learned counsel for the parties.

2. Rule. By consent, rule made returnable forthwith. Learned counsel appearing for the respondents waives service. By consent, the petition is taken up for hearing and final disposal at the admission stage itself.

3. This petition arises from the order dated 2-2-2005 passed by a Division Bench of the Small Causes Court at Bombay whereby two interim notices being Interim Notice Nos. 605 of 2004 and 1368 of 2004, taken out in Appeal No. 284 of2002 in R.A.D. Suit No. 2637 of 1985, have been disposed of.

4. The petitioners are the heirs and legal representatives of original plaintiff - Minoo Pavri. He had filed a suit being R.A.D. Suit No. 2637 of 1985 for declaration that he was entitled to tenancy rights of flat No.9, Puran Niwas, Colaba, Mumbai (for short "the suit flat"). The suit was filed against one Kishanchand P. Gupta, Karta/Manager of Hindu undivided family of Kishanchand P. Gupta (for short "the HUF"). The suit was decreed vide judgment and order dated 30-8-2001. Being aggrieved by the judgment and decree dated 30-8-2001 an appeal being Appeal No. 284 of2002 was preferred in the name of Kishanchand P. Gupta, showing him as Karta/Manager of the HUF on 6-4-2002. There is no dispute that before filing of the appeal, Kishanchand P. Gupta had expired on 23-10-2001. As such when the appeal was preferred the Karta of HUF, in whose name the appeal was preferred was not alive. In view thereof the plaintiffs took out Interim Notice No. 605 of 2004 for dismissal of the appeal being not maintainable, while Pramod Gupta, the son of Kishanchand Gupta, took out another Interim Notice No. 1638 of 2004 seeking deletion of Kishanchand's name and allowing him to represent the HUF as its kart a/manager.

5. Both the interim notices, taken out by the plaintiffs and the son of Kishanchand, were disposed of by the impugned order holding that in view of the provisions contained in Rules 4 and 10 of Order 30 of the Code of Civil Procedure (for short "the Code"), the HUF is to be treated as a firm and the death of the kart a/manager would not affect the proceedings. In other words, the Division Bench of the small causes Court held that in view of the provisions of Order 30 it is clear that as a suit/appeal does not abate where any of the partners of a firm dies, either before its institution or during its pendency, a HUF, carrying on business under any name, and sued in such name or style, if its karta dies, the suit/appeal instituted by the HUF also would not abate. The interim notice taken out by the plaintiff was, accordingly, discharged while the notice taken out by the son of Kishanchand was made absolute and he was allowed to be substituted as karta in place of his father.

6. In the present case, the Court below has allowed the application filed by the respondent solely relying upon the Rules 4 and 10 of Order 30 without understanding the basic difference between a firm and a HUF. The term "firm" as defined by section 4 of the Indian Partnership Act, 1932, means persons who have entered into partnership with one another are called individually "Partners" and collectively "a firm". The firm is not a juristic person. It is only a name of the collections of individuals who are members of the firm. A firm has to have two or more persons claiming to be its partners. While a Hindu undivided family cannot have more than one kart a/manager. The learned Judge, in my opinion, has completely overlooked the difference between a firm and a HUF, while allowing the interim notice taken out by the son of Kishanchand Gupta in the appeal which was a nullity.

7. Order 30 deals with the mode of suing firm. The correct way of bringing a suit under Rule 1 of Order 30 is to bring it in the name of firm as plaintiff without mentioning of any other name and to have the plaint signed and verified by one of its partners. Rule 2 provides that where a suit is instituted by partners in the name of their firm, the plaintiffs or t