Full Judgment Text
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PETITIONER:
BRIJ KISHORE SHARMA & ANR.
Vs.
RESPONDENT:
M/S. RAM SINGH & SONS & ORS.
DATE OF JUDGMENT: 01/10/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal by special leave arises from the judgment
of the Division Bench of the Patna High Court made on May 2,
1980 in appeal from Original Decree No.306/69.
The respondents filed a suit to recover a sum of
Rs.58,880/- on the foot of a promissory note dated April 1,
1960 to recover the principal sum of Rs.46,380/- and
interest which accrued thereon. The trial Court dismissed
the suit. But on appeal, the High Court allowed the appeal
and decreed the suit. Thus, this appeal by special leave.
Two points were raised in the written statement and
argued by the respondents. The first point that was
addressed and pressed for consideration is that the
respondent-plaintiff being a partnership firm, has not
impleaded all the partners co-nominees as plaintiff-party to
the suit. Resultantly, the suit is not maintainable. Pending
suit, one of the partners died and the legal representatives
were not brought on record. The question, therefore, was:
whether the suit is liable to be dismissed for non-joinder
of the necessary and proper parties? The trail Court as well
as the High Court recorded as a fact that the respondent-
firm is a registered partnership firm and, therefore, under
Section 69 of the partnership Act, the suit is maintainable.
The trail Court dismissed the suit on the ground that since
one of the partners died pending suit and the legal
representatives were not brought on record, suit was for
non-joinder of necessary and proper parties. The controversy
is covered by the provisions of order XXX of the CPC which
gives special procedure for filing the suit by or against a
partnership firm carrying on business in the name other than
its own. In this case, the relevant provision is Rule 4 of
Order XXX which provides thus:
"Order XXX Rule 4: (1)
Notwithstanding anything contained
in Section 45 of the Indian
Contract Act, 1872 (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 died, whether before
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the institution or during the
pendency of any suit, it shall not
be necessary to join the legal
representatives 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 suit, or
(b) to enforce any claim against
the survivor or survivors."
Sub-rule (2) is not relevant for the purpose of this
case. By operation of sub-rule 4 of order XXX, despite the
embargo under Section 45 of the Indian Contract Act, it is
not necessary that the legal representatives of the deceased
partner who dies whether before institution of the
proceedings or during the pendency of the proceedings,
should be substituted as a co-nominee party
plaintiff/defendant to the suit. The trial Court, therefore,
was not correct in holding that the suit is bad for non-
joinder of necessary party. The High Court was right in the
conclusion that the suit is maintainable.
The next plea raised was that the renewal of promissory
note executed by the appellants. The ground in support
thereof was that one of the coparceners who was the
signatory to the promissory note was hospitalised.
Consequently, he could not have executed the promissory note
on the even date. The High Court has gone into depth of this
aspect by consideration of the entire evidence on record,
mostly documentary evidence. Since it is a question of
appreciation of evidence and the High Court, as the final
court of fact, on appreciation thereon, the appellants-
defendants are liable for the payment of the amount due
thereunder. This being the finding of fact, we do not find
any error of law in the finding recorded by the High Court.
The appeal is accordingly dismissed. No costs.