The death of a partner in a partnership firm does not cause abatement of appeals against the firm under Order XXX of the Code of Civil Procedure.

JUDGMENT :

Hiranmay Bhattacharyya, J.

1. The 1^st respondent herein filed Ejectment Suit No. 584 of 1995 which was renumbered as Ejectment Suit No. 195 of 2000 before the Learned Judge 4th Bench, Presidency Small Causes Court at Calcutta against a partnership firm under the name and style “Messrs P.L. Mullick & Co.” for eviction and for recovery of khas possession from the suit room occupied by the firm as a tenant on the ground that the firm has wrongfully sublet and transferred possession of different portions of the suit room to several persons without consent of the landlord.

2. During the pendency of the said suit one of the partners of the firm namely Baldev Mullick alias B. Mullick died. The learned trial judge decreed the said suit by a judgment and decree dated February 11, 2003. A decree for eviction and khas possession was passed against the firm. Being aggrieved by the said judgment and decree, the firm preferred an appeal being Title Appeal No. 32 of 2003. The learned Judge 2^nd bench, City Civil Court at Calcutta dismissed the Title Appeal by a judgment and decree dated October 12, 2004.

3. The firm preferred the instant second appeal challenging the judgment and Decree passed by the learned Judge of the 1st Appellate Court.

4. The instant second appeal was admitted under the provisions of Order XLI Rule 11 of the Code of Civil Procedure for hearing on the substantial question of law framed by order dated April 6, 2005.

5. During the pendency of the instant appeal, Paresh Nath Mullick, alias P.N. Mullick, who was a partner of the firm at the time of institution of the instant suit, died on April 21, 2021. In course of hearing of the instant appeal on November 18, 2025, the factum of death of the said Paresh Nath Mullick was brought to the notice of this Court by the learned Senior Advocate for the 1^st respondent.

6. Thereafter, the 1^st respondent took out an application being CAN 11 of 2025 praying for dismissal of the second appeal as abated.

7. The case made out by the 1^st respondent in the aforesaid application is that at the time of institution of the suit, the appellant firm had only two partners one of whom namely Baldev Mullik died during the pendency of the said suit and the other died during the pendency of the instant second appeal. It is further stated in the said application that since no application for setting aside abatement has been filed, the instant appeal should be dismissed as abated.

8. The appellant also took out an application being CAN 12 of 2025 praying for leave to proceed with the instant appeal through its present partners.

9. The case made out by the appellant in the aforesaid application is that Mr. Tapas Kumar Hazra was a long standing partner of the appellant firm and was working in the suit premise which was well within the knowledge of the respondent. It was further stated therein that on August 7, 2013, P.N. Mullick and Tapas Kumar Hazra both retired and two new partners namely Dibanath Dey, Advocate and Sandip Kumar Bhattacharyya, Advocate were admitted as partners on the same day before retirement of the aforesaid partners. Subsequently the firm was reconstituted by inducting Mr. Jitendra Patnaik, Advocate as another partner by an instrument dated December 7, 2022.

10. Mr. Bose, learned Senior A