14.07.2025 Item No.19 Ct. No. 30 Aloke CO 3990 of 2024 Sampat Singh C & C R Vs.

M/s. Sharma Properties Mr. Sk. Reazul Islam … for the petitioner Mr. Pradip Mukherjee Ms. Chaitali Mukhopadhyay Ms. Neha Singh Mr. Purnakar Biswas … for the opposite parties

1. The civil revision has been preferred against an order dated 31.08.2024 passed by the learned Civil Judge (Senior Division), 4^th Court at Alipore, District South 24-Parganas, in Title Suit No. 93 of 1996 rejecting an application filed under Order 30 Rule 4(1) C.P.C. regarding substitution of Dhanik Sharma by the swimming partner, Arun Kumar Sharma as representative of M/s. Sharma Properties. 2. Vide the said order under challenge the trial Court rejected the plaintiff/petitioner’s prayer for such substitution.

3. It is stated that as Arun Kumar Sharma is the swimming partner, he is to be substituted in place of the deceased partner Dhanik Sharma.

4. The learned trial Court though has not given any specific reason, rejected the application under Order 30 Rule 4(1) C.P.C.

5. Supplementary affidavit has been filed by the parties.

6. The opposite party/defendant herein has filed a copy of the partnership deed, which shows that the partnership was between Dhanik Sharma and his son Arun Kumar Sharma.

7. The opposite party herein had filed an application before the trial Court stating as follows:

“1. That the defendant, a partnership firm, has since been dissolved and one of its partners, Dhanik Sharma, has also expired on 08.12.2014 who lefdt behind him surviving his widow, namely Tara Devi Sharma, and Rajkumar Sharma, Arun Kumar Sharma (the petitioner herein), all of 55/1, Swinhoe Lane, Police Station-Kasba, Kolkata 700 042, Gautam Sharma and Anil Sharma both of 6, Tiljala Road, Rose Valley, Block-A, Kolkata-700039 being his four sons and one daughter, namely Sulekha Sharma who is residing in Flat No.76, Phoenix House, 92A, Bath Road, Hounslow, TW3, 3FF, United Kingdom.

2. Therefore, the proceedings of the instant suit is being proceeded against an non-existent entity, inasmuch as the defendant partnership firm stands dissolved.”

8. It appears that at present the partnership has dissolved, on the death of one of the two partners. 9. The Madras High Court in K. Murali (died) & Ors. vs. K. Karunanithi & Anr., in S.A. No. 1554 of 2003 and C.M.P. Nos. 10302, 24134 & 24136 of 2019, on 2nd June, 2020, held as follows:-

“21. He also relied upon the judgment reported in (2010) 2 SCC 407 in the case of Mohammed Laiquiddin and anr Vs. Kamala Devi Misra (died) by LRs and ors which reads as follows :-

http://www.judis.nic.in “25. Dissolution of a partnership firm on account of death of one of the partners is subject to the contract entered into by the parties. In this context, it is pertinent to refer to the terms of the deed of partnership. Clause 22 of the Partnership deed reads as follows:

"The partnership shall be in force for a period of 42 years certain from this date and the death of any partner shall not have the effect of dissolving the firm." This clause clearly states that death of any partner shall not have the effect of dissolving the firm. However, in the facts and circumstances of the case, we are not in a position to give absolute effect to this clause of the deed of partnership.

26. The learned counsel for the Respondents contended that since the parties agreed that in spite of the death of any of the partners, the firm shall continue for 42 years irrespective of the death of the original plaintiff (since deceased). They further, argued that it clearly contemplates that the legal representative of the partner, who dies, would be under a duty to enter into a fresh deed of partnership. The legal representatives were precluded from claiming benefits if they deny entering into a fresh http://www.judis.nic.in partnership agreement.

27. In order to arrive at the conclusion that the partnership firm stood dissolved on account of death of one of the partners, the High Court had rightly placed reli