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Brij Kishore Sharma & Anr Vs. M/S. Ram Singh & Sons & Ors [1996] INSC 1240 (1 October 1996)

K. Ramaswamy, G.B. Pattanaik




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 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 there under. 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.



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