Sharma & Anr Vs. M/S. Ram Singh & Sons & Ors  INSC 1240 (1 October 1996)
O R D
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.
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.
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:
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.
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:
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 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
Nothing in sub-rule (1) shall limit or otherwise affect any right which the
legal representative of the deceased may have-
apply to be made a party to the suit, or
enforce any claim against the survivor or survivors."
(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.
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.
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 there under. This being the finding of fact, we do not find any error of
law in the finding recorded by the High Court.
appeal is accordingly dismissed. No costs.