Disallowance of cost payable to successful party.

This appeal relates only to the question of costs disallowed by the learned City Civil Judge in his judgment and decree in O.S. No. 1735 of 1957, on his file.

The suit was filed by a firm called Messrs. A. Hajee Abdul Rahim Sahib & Co. represented by partners (1) A. Hajee Abdul Rahim Sahib, (2) A. Jameel Ahmed Sahib and (3) S. Mohamed Ismail Sahib praying for the recovery of a sum of Rs. 17,956-85 nP., with interest thereon at nine per cent, per annum from the date of the plaint and for other reliefs from the defendants in the suit. It is not necessary to refer to the averments in the plaint or in the written statement. One of the objections raised on behalf of the defendants was that the suit was not maintainable, as the plaint firm was not registered as required by the provisions of the Indian Partnership Act. This question of the maintainability of the suit was tried as a preliminary issue by the learned City Civil Judge, as the issue raised the fundamental question of the maintainability of the suit itself. The learned City Civil Judge held after hearing the arguments on both sides and after trying the issue as a preliminary issue, that the suit was not maintainable. He accordingly dismissed the suit, but did not award any costs in favour of the successful defendants. The reason, why no costs were awarded to the defendants, can be gathered only from paragraph 11 of his judgement:

“It is undoubtedly unfortunate that a very substantial claim has to go uninvestigated and relief refused to the plaintiffs on a technical ground. In the position of law, as it appears to me, this has become inevitable. The objection taken by the defendants is, therefore, sustained. The preliminary issue is answered in their favour, and the suit is dismissed, but under the circumstances, without costs.”

This, appeal has been preferred by defendants who take exception to that portion of the judgment which negatived costs in their favour.

On behalf of the respondent (the plaintiff-firm) Mr. Selvaraj, learned counsel, has raised the preliminary objection that the appeal has abated. Learned counsel submits that two of the partners died in a car accident early in September, 1960, and that the legal representatives of the deceased partners have not been brought on record as respondents in this appeal. This objection cannot be sustained in view of the provisions of Order 30 , Rule 4 of the Code of Civil Procedure. It is in these terms:

“4 . (1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 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 die, 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.”

A firm has been recognised by the Civil Procedure Code as a unit or entity for the purpose of civil actions. It is conceded that one of the partners is still alive and though the other partners are dead, there is no disability on the part of the appellants in continuing this appeal against the firm which is now represented by the surviving partner. The preliminary objection is, therefore, overruled.

Mr. Chalapathi Rao, learned counsel for the appellants, contends that the learned City Civil Judge has not given any reason to deprive the successful defendants of the costs legitimately due to the defendants, inasmuch as the suit itself was dismissed. Learned counsel points out that costs must follow the event and there are no grounds upon which the defendants should lose their costs for having succeeded in the action. It cannot be said that the learned Judge has not given any reason but it seems to me that the reason given by him is not sufficient to disallow costs in favour of the defendants. The fact, that the defendants raised a plea, which is a legal one, in bar to the maintainability of the suit, does not mean that it is an unjust contentio