1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No. 6983/2009 M/s Kishan T Asrani & anr Vs Rent Tribunal, Jaipur City & anr 19.11.2010 HON'BLE MR. JUSTICE MN BHANDARI Mr RK Agrawal - for the petitioners Mr NK Maloo – for respondent No.2 BY THE COURT: By this writ petition, order dated 6.5.2009 has been challenged. The said order was passed on an application moved by the petitioners under section 21 of the Rent Control Act, 2001 (for short 'the Act of 2001') read with provisions of section 151 of the Code of Civil Procedure (for short 'the CPC'). It was to pray that two partners of the firm having died and their legal heirs are not brought on record, the suit abates and, accordingly, necessary order may be passed. The aforesaid application was dismissed by the court below, aggrieved by the aforesaid, this writ petition has been filed. Learned counsel for petitioners submits that prior to the order dated 6.5.2009 court below passed an order on 12.2.2009 2 on an application was moved by the respondent No.2-landlord under order XXX rule 10 read with section 151 CPC. This was to seek exemption from bringing legal heirs on record on death of two partners namely; Sita Devi and Indra Prakash Asrani. The application aforesaid was dismissed and thereby the prayer made therein by the respondent-landlord was disallowed. In concluding para 8 of the order, the court below found that M/s Kishan T Asrani is defendant No.1 on record and as per averments made by the applicant therein, there is no necessity to implead proprietor as party respondent. If, at all, court feels it necessary to mention proprietor's name then Uttam Asrani son of Indra Prakash Asrani may be mentioned after name of the firm. The court, however, made it clear that no such prayer has been made in the application and if, at all, respondent-landlord want to see that firm is represented through proprietor then they can make an application to that effect. No such application was ever made by the respondent-landlord. In those circumstances, petitioner made an application seeking abatement of the suit. In absence of legal heirs of two partners, the suit be dismissed as abated but the court below committed an error in dismissing the application moved by petitioner. Reference of provisions of order XXX rule 4 CPC has been given to show that if out of many partners one or two dies leaving one then legal heirs are not required to be brought on record but the position in this case is that both the partners died 3 leaving none and hence, suit should have been abated. Reference of the judgment of this court in the case of Gajanand Versus Sardarmal and another (AIR 1961 Rajasthan 223) has been given, wherein, dealing with the issue, it was held that if somebody is already there to continue with the suit then the provisions of order XXX rule 4 CPC will apply. Taking a converse view, learned counsel for petitioners submits that if none of the partners survives then obviously the suit has to be declared as abated. Further reference has been given to the judgment in the case of MS Pearl Sound Engineer Vs M/s Pooran Chand & ors (AIR 1975 Allahabad 207), wherein, it was held that legal heirs of one of the respondents, if not brought on record, the appeal should abate. The prayer of learned counsel for petitioners is, accordingly, to set aside the order passed by the court below and declare the suit as abated. During course of arguments learned counsel for petitioners was asked as to in what capacity he made an application under section 21 of the Act of 2001. It was fairly conceded that it was under the capacity of proprietor of the firm and, for that purpose, he relied upon provisions of order XXX rule 4 (2) CPC, wherein, it is provided that sub-rule (1) of rule 4 of order XXX will not limit or otherwise affect any right which the legal representative of the deceased may have to enforce any claim 4 against the survivor or survivors. The case of the present petitioners is falling in that category. It is further stated that partnership firm simplicitor has no entity in the eye of law thus suit is not maintainable in absence of partner therein. Reference of the judgment in the case of Comptroller & Auditor General versus Kamlesh Vadilal Mehta ([003] 2 SCC 349) and N Khadervali Saheb (dead) by LRs and anr Vs N Gudu Sahib (dead) and ors ([2003] 3 SCC 229 has been given. Learned counsel for the respondent-landlord, on the other hand, submits that issue involved in this case has been settled by the Hon'ble Apex Court on similar facts. Reference of the judgment in the case of Upper India Cable Co. and ors Vs Bal Kishan ([1984] 3 SCC 462) has been given, wherein, dealing with similar facts, Hon'ble Apex Court held that application for abatement cannot be permitted. Reference of paras 8, 9 and 11 of the aforesaid judgment has been given to show decision of the Apex Court on similar facts. Since partnership firm is there as a party respondent, suit cannot be treated as abated even if two persons died during pendency of the suit and their legal representatives are not brought on record. Learned counsel for respondent-landlord further admitted that if petitioner Uttam 5 Asrani represents the firm in the capacity of proprietor firm he has no objection to the same subject to decision of the issue of eviction on the ground of sub-letting of the rental premises. During course of arguments, a dispute came up as to whether premises in dispute was rented to the firm or to the individual. It goes in the roots for the reason that if the premises was rented out to the firm then the matter is to be viewed accordingly and if it is to the individual then position would be different. This is in the circumstances that rent note is not before me. I have considered rival submissions made by learned counsel for the parties and scanned the matter carefully besides going through the judgments cited at the Bar. The first argument raised by learned counsel for petitioners is that in absence of partners to the firm or their legal heirs as party, the suit against the firm is not maintainable thus the same is to be abated. This is more so when the application earlier moved by the respondent landlord under order XXX order 10 CPC was dismissed and thereby exemption to bring legal heirs on record was not granted. They were given liberty to make an application for representation of the firm through Uttam Asrani, 6 however, no such application has been filed. In the background aforesaid, I have to decide the matter. Since the main question is that in absence of legal heirs of deceased defendants, present suit will abate against the firm. So far as learned counsel for petitioners is concerned, he has relied upon the judgment in the case of Gajanand (supra), wherein, facts were quite different inasmuch as out of many partners therein, one or more were surviving, thus provisions of order XXX rule 4 CPC were made applicable. It is prayed converse to what has been decided therein would be that if none is there as party defendant then order XXX rule 4 CPC will not apply and,accordingly, suit should be treated as abated. The emphasis has been further made by referring the judgment in the case of MS Pearl Sound Engineer (supra), but facts of that case has no application to this case. As against this, the judgment of the Hon'ble Supreme Court in the case of Upper India Cable Co. and ors (supra) covers the issue herein. Paras 8, 9 and 11 thereof are quoted herein - “8. Now the question is where the suit is instituted against the firm and partners are impleaded as proper parties, in the event of death of a partner so sued, would the suit or appeal, as the case may be, abate if heirs and legal representatives of the deceased partner are not substituted within the prescribed period of limitation. There is a two-fold answer to this question. Order XXX, Rule 4 provides that notwithstanding 7 anything contained in Section 45 of the Indian Contract Act, 1872 where two or more persons are sued in the name of the firm under the enabling provisions of order XXX, and any such person dies whether before the institution of the suit 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. Secondly death of a proper party would have no impact on the suit more so where on death of a partner the partnership may stand dissolved or heirs do not desire do not desire to join the firm. Both these aspects were overlooked by the High Court. 9. Turning to the facts of this case, we are concerned with the suit as it was framed and instituted. In the suit for eviction firm was impleaded as the tenant and the deceased partners were impleaded as merely proper parties which would tantamount to making them formal parties. No relief of any kind was prayed for against them in their personal capacity. The decree for eviction would operate against the firm according to the plaintiff himself because the firm was the tenant. 11. The position boils down to this that two of the partners who were appellants along with the firm in the second appeal before the High Court died pending the appeal. It is nobody's case that the heirs and legal representatives of the deceased partners joined the firm or they were entitled to be taken in as partners in place of the deceased partners as partners in the firm. Therefore, the question to be answered is whether on the death of two of the proper or formal parties impleaded in their capacity as partners by the plaintiff along with the firm, in absence of substitution of heirs and legal representatives the appeal abates? The answer is in the negative. Therefore, the question of substituting heirs and legal representatives of the two proper formal parties does not arise and the death has no impact on the proceeding. The appeal cannot abate. Therefore, the High Court was in error in disposing of the appeal as having abated.” Perusal of the aforesaid shows that facts therein were similar to that what exist before me. The Hon'ble Apex Court therein decided the issue holding that suit will not abate. This is 8 more specific while dealing with the facts in para 11 of the judgment quoted above. The issue was that on the death of two of the formal parties impleaded as a partner of the firm along with the firm as party, in absence of substitution of heirs or legal representatives of deceased partners, whether appeal abates, the answer was given in the negative. In view of aforesaid, there is a complete answer to the question raised herein. The fact, however, remains as to what is the factual status of this case, whether rental premises exist in the name of firm or it is in the name of individual. If it is to the firm then matter is covered by the judgment of Hon'ble Apex Court in the case of Upper India Cable Co. (supra) and by virtue of that, the suit will not abate. In case premises was rented out to individual, the position would be different. Since this factual position has not been dealt with or was not brought before the court below as is otherwise going into roots, I am of the opinion that matter needs to be remanded back to the court below to decide the controversy raised by the counsel for the parties. Whether aforesaid issue is to be decided as a preliminary issue or it should be decided along with the suit itself, would be looked into by the court below itself. The argument that in absence of partners as defendants, suit is not maintainable against the firm as it is not 9 considered to be a legal entity, is a question not coming out from the application made by the petitioner before the court below. Thus it cannot be allowed to raise herein more so when it is not concerned to the issue of abatement of suit. Accordingly, it is expected of the court below that necessary exercise would be taken up within time frame and if it is possible then preferably within two months if it is decided as preliminary issue and if it is decided along with the suit then within a period of six months. In view of the discussion made above and directions given at this stage the suit cannot be said to have abated, accordingly, no interference is made in the impugned order but it will remain subject to out come of the decision of the issue as referred to the court below. With the aforesaid, writ petition is disposed of. (MN BHANDARI), J. bnsharma