1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR FIRST APPEAL NO. 756 OF 2009 [Smt. Parvati wd/o Sardarsingh Gosai and ors. .vs. Maharashtra Housing and Area Development Board and ors. ] ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. S.D. Khati , Advocate for Appellants. Mr. N.A. Vyawahare, Advocate for Respondents 1 to 3. ... CORAM : S.A. BOBDE & P.D. KODE, JJ. DATE OF RESERVING THE ORDER : 01.04. 2010. DATE OF PRONOUNCING THE ORDER : 07 .05. 2010. 1. Heard. 2. The present appeal has been directed against the order dated 16.1.2008 passed by learned 3rd Joint Civil Judge, Senior Division, Nagpur dismissing Special Civil Suit No. 528 of 1989 filed by M/s S.B. Gosai & Company a registered partnership firm through a partner Sardarsingh Bodasingh Gosai. The said suit was instituted against the respondents for recovery of an amount of Rs.30,28,170.40 ps. along with an interest and costs for the work executed in pursuance of a contract entered in between the plaintiff firm and the defendants. 3. Upon the application made by the defendants under Order 7 Rule 11 read with Sections 9 and 151 of the Code of Civil Procedure for dismissal/rejection of the suit, the 2 trial Court had framed preliminary issues (A) regarding suit being barred by limitation in view of the Section 174 of the MHAD Act, 1876 and (B) regarding the suit being bad for non- joinder of necessary party. In connection with the said issues framed, the plaintiff had examined son of Sardarsingh Gosai. The defendants had not examined any witness. The trial Court for the reasons recorded in the order appealed came to the affirmative finding upon the said issues and consequently dismissed the said suit. 4. The learned counsel for the respondent nos. 1 to 3 vehemently contended that the present appeal being not preferred by the original plaintiff in the said suit and the same being preferred by heirs of the deceased Sardarsingh Gosai, partner of the said firm, the same is not maintainable and as such is liable to be dismissed. 5. The learned counsel for the appellants contended that the appellants – legal representatives of Sardarsingh Gosai were duly brought on the record as per order dated 13.2.2007. He urged that though earlier the plaintiff firm was the partnership firm, the same was closed about 15 to 16 years prior to the tendering of an affidavit of appellant no.3 before the trial Court, and the firm name was permitted to be used by late Sardarsingh Gosai by the other partners after dissolving of the partnership firm and since then late Sardarsingh Gosai was looking after the affairs of the said firm. He urged that the said defect had remained to be cured by Sardarsingh Gosai probably due to the changes of counsel on several times. He urged hence the appeal preferred by the legal heirs of Sardarsingh Gosai who had filed the said suit cannot be said to be not maintainable. 6. The perusal of the record and particularly the copy 3 of the plaint annexed with the appeal memo nowhere reveals that any legal heirs of Sardarsingh Gosai were brought on the record as contended by the learned counsel for the appellants and so also as found stated in the affidavit of the appellant no. 3 filed before the trial Court of which copy is annexed with the appeal memo. Similarly perusal of the plaint and particularly the matters stated in paragraph no.1 of the same in no uncertain terms reveals that the said suit was filed by the partnership firm. The said copy also does not contain any material to come to the conclusion of legal heirs of Sardarsingh Gosai being brought on the record as contended. 7. The perusal of the order appealed also does not support the relevant submissions canvassed by the learned counsel for the appellants. The matters stated in paragraph no. 2 of the order appealed reveals that appellant no.3 Kalyansingh was examined as PW1 on behalf of the plaintiff. It is significant to note that the order does not depict that Kalyansingh was examined as plaintiff. The paragraph no.6 of the order appealed reveals that the plaintiff firm was dissolved in the year 1992 and no necessary parties were brought on the record. Though the learned counsel for the appellants has tried to canvass on the basis of the evidence of appellant no.3 that the defendant having not examined any witness or cross- examined the appellant no.3, the matters from the same will be required to be accepted. We are unable to accept the said submission for want of any proper pleadings regarding the relevant aspects. Needless to add that even if not contested, still the evidence divorced from the pleadings would be valueless. The learned counsel for appellants was not able to point out any material from the record entitling the appellants/legal heirs of one of the partners for continuing the 4 suit in the name of partnership and for preferring the appeal. Having regard to the same , we find all the merits in submissions/objections raised on behalf of the respondents regarding the maintainability of the present appeal. As a result thereof, we dismiss the appeal in limine. JUDGE JUDGE halwai