BHANDARI, J.—This revision application has been referred by a Single Judge of this Court to a Division Bench for decision as in his opinion there were important points of law involved in this case.

2. Sardarmal, Mangilal and Rajmal, all residents of Agra filed a suit for the recovery of Rs. 9,500/- against Gaja Nand alleging that the three plaintiffs carried on in partnership the business of Hazarilal Ganeshilal. The defendant carried on business at Sambhar, which at the time of the filing of the suit formed part of the States of Jaipur and Jodhpur. The plaintiffs claimed that a sum of Rs. 9,500/- was payable by the defendant to the plaintiffs in respect of the silver transactions detailed in the plaint. The suit was filed on the 23rd of August, 1948, and it may be mentioned that at that time the plaintiffs could not sue the defendant in the name of the Firm as the Firm was situated outside the Sambhar Shamlat Area where the provisions of the Indian Civil Procedure Code as such did not apply. One of the plaintiffs Magan Lal died on the 21st of December, 1951, but no application was made to bring his legal representatives on record. On the 21st of May, 1952, an application was made by the surviving plaintiffs Sardarmal and Rajmal that as the right to sue survived to them alone, it was not necessary to bring the legal representatives of Magan Lal on record and his name should be struck off. Objection was taken on behalf of the defendant that the suit abated as a whole and the learned Judge of the trial court held that by virtue of O. 30, rule 4 CPC, there was no abatement of the suit. The defendant has filed the present revision application against that order.

3. An objection was raised on behalf of the surviving plaintiffs that the revision application was not maintainable in view of the decision of Full Bench of this Court in Purohit Swarup Narain Vs. Gopi Nath(1). It was held in that case that where it was open to a party to raise a ground of appeal under sec. 105 CPC from the final decree or order with respect to any order which has been passed during the pendency of the case, no revision application was maintainable under sec. 115 CPC challenging that order as an appeal in that case lay to the High Court within the meaning of the term in which no appeal lies thereto. It wa|s contended on behalf of the defendant that he could not challenge that order in the appeal that might have to be filed against the final decree or judgment if passed against him by virtue of sec. 99 CPC as it did not affect the merits of the case. On merits, it was contended before the learned Single Judge that O. 30, r. 4 was applicable only when the suit was instituted in the name of the Firm and not otherwise, and as in this case, the suit was instituted in the name of the Firm, the learned Judge of the trial court was wrong to apply the provisions of that order to the present case. The learned Single Judge referred to certain authorities in this connection and I shall take notice of them while deciding this point. The arguments addressed before the Single Judge are reiterated before us by the learned counsel for the defendant.

4. An affidavit of Rajmal plaintiff has been filed before us that it was a term of the partnership that it would not be dissolved on the death of one of the partners. Learned counsel for the applicant has seriously contested the statement contained in this affidavit and has also urged that it was filed too late. As the affidavit has been filed at a very late stage, we think it proper that the revision application should be decided ignoring this affidavit.

5. First of all, I may mention that the learned trial Judge has treated the suit as one filed by a Firm on the ground that in paragraph 1 of the plaint, the plaintiffs had alleged that they were partners of the Firm Hazarilal Ganeshilal which carried on business at Belanganj, Agra. In my opinion, the learned Civil Judge is wrong in taking this view. The whole tenor of the plaint i

Click Here to Read the rest of this document