IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.799 of 2009 Syed Mohammad Iqbal Hussai, son of Late Syed Mohammad Hefazat Hussain, a resident of Mohalla Bakerganj, P.S. Pirbahore, in the Town and District of Patna. …………………………….Plaintiff-Petitioner. Versus 1. M/s Md. Ibrahim and sons, a registered partnership firm through it’s one of the partners, Md. Mushtaque, at Ashok Rajpat, P.S. Pirbahore, in the Town and District of Patna. 2. Md. Mushtaque 3. Md. Shahid All sons of Late Md. Ishaque and all partners of the firm, Md. Ibrahim and sons and all residents of mohalla Bakarganj, P.S. Pirbahore, P.S. Bankipore, Town and District Patna. …..Defendant nos.1, 2 and 4-Opposite party 1st set. 4. Md. Ejaz Ahmad, son of late Md. Ashfaque 5. Ms. Agara 6. Ms. Bursha Daughters of Late Md. Ashfaque, all residents of Mohalla Bakerganj, P.S. Pirbahore, in the Town and District of Patna. …….Defendant nos.3, 5 and 6-Opposite party 2nd set. For the petitioner : M/s J.S. Arora and Ajay Kumar, Advocates. For the opposite parties : Mr. Neeraj Kumar, Advocate. ----------- 03/ 06.10.2009 Heard learned counsel for the petitioner. Although notices have been validly served upon the main contesting parties, namely opposite party nos.5 and 6, they have not appeared in this case and accordingly this civil revision is decided at this stage itself. 2. This civil revision has been filed by the sole plaintiff- petitioner challenging order dated 13.02.2009 by which the learned Munsif-III, Patna, allowed the application of opposite party nos.5 and 6 and directed them to be added as parties in Eviction Suit No.17 of 2004. 2 3. The aforesaid suit was filed by the sole plaintiff- petitioner for eviction of the defendants on the ground of his bonafide personal requirement. The said suit was contested by the defendants whereafter issues were framed. However, it transpires that during the pendency of the suit the original defendant no.3 Md. Ashfaque died and in his place his son Md. Ejaz Ahmad (opposite party no.4) was substituted vide order dated 09.08.2006 passed by the learned court below with an observation that if the remaining legal heirs and successors of the original deceased defendant no.3 want to be added as parties in place of their deceased father, they will be at liberty to file such application. 4. It transpires that after the said order dated 09.08.2006 no step was taken by opposite party nos.5 and 6 for being impleaded in the suit although their brother opposite party no.4 was already a party to the suit and only after two years when eviction suit was at its fag end that they filed an application dated 26.06.2008 for being added as parties to the suit, which was allowed by the learned court below vide its order dated 13.02.2009, which is under challenge in this civil revision. 5. From the facts and circumstances of the case, it is quite apparent that opposite party nos.5 and 6 should have filed such application immediately after the said order dated 09.08.2006, but they did not do that. The plea of absence of any knowledge cannot be believed as their brother was already a party to the suit after being substituted in place of their father and they are living jointly 3 and their address given by them also is the same. 6. Furthermore, Order XXX Rule 4 of the Code of Civil Procedure specifically provides that notwithstanding anything contained in Section 45 of the Indian Contract Act, 1872 (9 of 1872), where two or more persons may sue or be sued in the name of a firm under the forgoing provisions and any of such person dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as party to the suit. In the instant case it is not in dispute that the tenant is a firm and the original defendant no.3 was one of the partners and after his death his son opposite party no.4 had taken his place and hence opposite party nos.5 and 6 being merely heirs and legal representatives of the deceased defendant no.3 were not necessary parties to be impleaded in the eviction suit. 7. Furthermore, a Bench of this court in case of Shri Awadheshwari Prasad Narain and Ors. Vs. M/s Priti Garments and Ors., reported in 2009 (3) P.L.J.R. 920 has specifically held that in a suit for eviction of a partnership firm where defendant, who was a partner in the firm, dies during the pendency of the suit, any application filed by his heirs and legal representatives for being impleaded as parties in his place, cannot be legally allowed as they were not necessary parties to join the legal representatives of the deceased partner. The learned court below has not considered the aforesaid provision of law as well as the case law and its order being in teeth of the said provisions, is not 4 sustainable in law. 8. Accordingly, this court finds that the impugned order is illegal and the learned court below has committed an error of jurisdiction and accordingly, this civil revision is allowed and the impugned order of the learned court below is set aside. 9. Since this civil revision has arisen out of an eviction suit of the year 2004 on the ground of bonafide personal requirement of the plaintiff, the learned court below is directed to expedite the disposal of the suit and conclude it expeditiously preferably within six months from the date of receipt/production of a copy of this order. harish/ ( S. N. Hussain, J. )