Back
2008 Supreme(MP) 1084
R.S. Garg and S.K. Seth, JJ.
Suresh Kumar and others v. Baluram (d) through L.Rs. and another
Writ Petition No. 4536 of 2007 (I); Decided on 3.11.2008.*
VK. Jain for petitioners; Yogesh Mittal for respondents.
Headnote:(1) Civil P.C., 1908 -- O. 30 R. 4 (1) and (2) -- partnership firm a party to the suit -- one ofpartners dying during suit --legal representatives may file application to bring them on record.
A perusal of sub rule (2) of Rule 4 of Order 30 of the CPC would make it clear that nothing in sub rule (1) of Rule 4 shall limit or otherwise affect any right, which the legal representatives of the deceased may have to apply to be made a party to the suit.
[Para 11
(2) Accommodation Control Act, 1961 (M.P.) -- S. 12 (1) (b) -decree passed in suit under -- it is binding upon sub-tenant even if not a party to the suit. [Para 12
flfoy izfdz;k lafgrk] 1908 && vk- 30 fu- 4 ¼1½ rFkk ¼2½ && Hkkxhnkjh QeZ okn dh i{kdkj && okn ds nkSjku Hkkxhnkjksa esa ls ,d dh e`R;q && fof/kd izfrfuf/kx.k mudks vfHkys[k ij ykus ds fy, vkosnu Qkby dj ldrs gSaA
fl-iz-la- ds vkns‘k 30 ds fu;e 4 ds mifu;e ¼2½ dk ifj‘khyu ;g Li"V djsxk fd fu;e 4 dk mifu;e ¼1½ fdlh vf/kdkj dks lhfer vFkok vU;Fkk izHkkfor ugha djsxk] tks e`rd ds fof/kd izfrfuf/kx.k dks okn dk i{kdkj cuus ds fy, vkosnu fd;k tkuk gSA ¼iSjk 11
¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12 ¼1½ ¼[k½ && okn esa fMdzh ikfjr dh xbZ && ;g mi&HkkM+snkj ij vkc)dj gS Hkys gh okn dk i{kdkj ugha gSA ¼iSjk 12
Garg, J. -- 1. The original respondent No.1 Baluram Sio Nathulal Goyal filed a civil suit against Motilal Sio Prahladji Agrawal and Mis Ramdhan Kisanlal with the allegation that the original defendant No.1 Motilal was inducted as a tenant but during the tenancy, he sub-let part of the suit property to original defendant No.2. It is worth noticing that the suit was filed in the year 1961 and is still pending.
2. It is also to be noted that the original defendant No.2 M/s Ramdhan Kisanlal was joined as a partnership firm with its two partners viz. Ramdhan Sio Kishorilal and Kisanlal Sio Ramnath Agrawal. Somewhere in January, 1997, one Suresh Kumar filed an application with a submission that Ramdhan Sio Kishorilal had expired long back, his legal representatives have not been brought on record, the suit had abated and in case the Court finds that the suit had not abated, then a direction be issued to the plaintiff to correct the record
3. On 29.9.2003, the plaintiff moved an application under Order 22 Rule 4 CPC for substitution of the legal representatives. However, separate applications under Order 22 Rule 9 CPC for setting aside abatement and under section 5 of the Limitation Act for condonation of delay were not filed. On 10.12.2003, a consolidated application under Order 22 Rule 9 CPC and section 5 of the Limitation Act came to be filed. The applications were opposed tooth and nail. However, by impugned order dated 7.7.2007, the learned trial Court allowed the application, therefore, the legal representatives of Ramdhan S/o Kishorilal have come to this Court under Article 227 of the Constitution of India.
4. Shri Jain, learned counsel for the petitioner submitted that as appropriate application was not filed up to the year 1997, one of the legal representatives filed an application before the Court to bring the fact of death to the notice of the Court and again for a period of six years, the plaintiff did not make an application for substitution of the legal representatives. According to Shri Jain the suit had abated and the applications were miserably misconceived. The submission is that the trial Court could not have granted the application.
5. Shri Yogesh Mittal, learned counsel for the respondent No.1 (since deceased) has submitted that defendant No.2 Mis Ramdhan Kisanlal was a partnership firm and it is settled law that on the death of a partner, the suit against the firm would not abate. His further submission is that M/s Ramdhan Kisanlal was not a tenant in the property but was added as a party defendant with an allegation that they were inducted as sub-tenant in the property. His further submission is that joinder or non-joinder of sub-tenant to the suit proceeding would be within the discretion of the plaintiff, the plaintiff being the dominus litus.
6. We have heard the parties.
7. It is settled law that a sub-tenant would not be necessary party in a suit for eviction against the original tenant. The sub-tenant may be joined as a formal party to the proceeding so that the future complications are avoided. In the present case as M/s Ramdhan Kisanlal was a partnership firm and as it was joined as a party defendant in its capacity as subtenant, we do not think that on the death of one or all of the partners, the suit would abate against the firm.
8. Order 30 Rule 4 of the Code of Civil Procedure reads as under:
(4) Right of suit on death of partner -- (1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872 (9 of 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 dies, 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.
(2) Nothing in sub-rule (1) shall limit or otherwise affect any right which the legal representative of the deceased may have --
(a) to apply to be made a party to the
