ANOKHE LAL v.

RADHAMOHAN BANSAL AND OTHERS.

NOVEMBER 1, 1996

[MADAN MOHAN PUNCHHI AND K.T. TEOMAS, JJ.]

Code of Civil Procedure, 1908-0r. 30 R. 4 (2) and Sec. 115-Eviction suit against a firm, contested by one of its partners-Seeking impleadment of the son of a deceased partner-Rejected by trial court-Revision filed- During pendency of revision, eviction suit was decreed and was confirmed C in appeal-Revisional court, despite being aware of this fact. impleaded third party-Held, such impleadment involves de novo trial and should not be allowed-Hence, revision infructuous.

Code of Civil Procedure, 1908-0rder 30 Rule 4 (2) and Order 1 Rule 10(2)-Scope of-Suit by or against firm-Jmpleadment of legal D representative of deceased partner as an additional defendant-Held 0.

30, R. 4(2) does not create any right, only operate as exception to sub rule

(1) and cannot come into operation where 0.1, R. JO cannot be invoked.

Code of Civil Procedure, 1908-0rder 30 Rule 4-Scope of-It does E not create any right for impleadment of a legal representative, but only operate as an exception to S. 45 of Contract Act.

Appellant-Landlord tiled a suit for eviction against a partnership firm. One of the partners defended the suit and tiled written statement on behalf of the firm. Respondent no. I, son of a deceased partner, F tiled an application under Or. I, R. 10(2) CPC to get himself impleaded in the suit as a defendant, but it was rejected by the trail court.

Revision was filed before the District Court, but the same was also rejected.

G Respondent no. I, then filed a Second application before the trial court under Or. 30, R. 4 CPC for getting himself impleaded in the suit which was also dismissed.

Then, he filed a Writ Petition under Article 226 of the Constitution of India, challenging the orders of District Court as well H as of the trial court. This Petition was later on converted into a revision

ANOKHE LAL v. RAD HAM OHAN BANSAL 309

petition. During the pendency of this revision, the suit of the plaintiff A was decreed and was later on confirmed in appeal by the District Court. In revision, th'e single judge despite being aware of the said fact, by his impugned order, allowed the Second application of the respondent no. I. Hence, this appeal by special leave.

Allowing the appeal, this Court B

HELD: I.I. Court should be very circumspect in dealing with the application of a third party seeking leave to become party in the suit, when the plaintiff, who is the dominus litis of the suit, is opposed to it. If the consequence of such addition would involve a de novo trial, the court should have disallowed the application.

1.2 It is strange that the single judge allowed a person to be impleaded in a non-pending lis, despite being aware of the fact that no suit or appeal was pending before any court. However, an observation had been made in the order that 'it is open to the respondent no. 1 to proceed with his remedy in accordance with law.' D There was no need or occasion to pass such an order for impleading a person as a new party since the suit was not pending. When the High Court took up the revision for argument, no suit was pending. In such a case revision should have been dismissed as infructuous.

Naba Kumar Hazra v. Radhashyam Mahish, AIR (1931) PC 229, relied on.

2. The application of the respondent no. 1, under Or. 30 R.4, is

not maintainable on the facts of the case. Or. 30 R. 4 is only an exception to Section 45 of the Contract Act and has been prescribed F to dilute the rigour contained id the rule regarding partner•hip firm in Section 45. The contents of R. 4 (1) and (2) of Or. 30 CPC, clearly indicates that rule 4(2) does not create any right as such for a legal representative to get impleaded in a suit, but it only operates as an exception to Rule 4(1). At any rate, Rule 4(2) of Order 30 cannot G come into operation in a situation where Order 1, Rule 10 CPC cannot be invoked. Accordingly, tl:e impugned order passed in revision is set aside. (311-F, 312 B, E-H]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 13716 of 1"6.

A From the Judgment and Order dated 30.1.95 of the Mdhya Pradesh in C.R. No. 969 of 1994.

Vivek Gambhir for the Appellant.

B H.M. Singh for the Respondent No. I

The Judgment of the Court was delivered by :

THOMAS, J. Leave granted.

C A landlord has come up in challange of an order passed by a Single Judge of the Madhya Pradesh High Court at Jabalpur, by which the application of first respondent to get himself imp leaded as a party in a suit has been granted.

Facts are these :

Appellant_.:_landlord filed the suit for eviction of his tenant (M/s.

Hanuman Prasad Shriram-a partnership firm) from a building leased out to the firm on the two grounds envisaged in Sec.tion 12 (I) (a) and (f) of the Madhya Pradesh Accommodation Control Act, 1961. The suit was contested by the firm and written statement for the firm was signed by one E of its partners (Motiram). During the pendency of the suit, first respondent in this appeal (who is the son ofHanuman Prasad-another partner of the firm who died) filed an application under Order I Rule I 0(2) of the Code of Civil Procedure (for short 'the Code') to get himself impleaded as an additional defendant in the suit. The application was dismissed by the trial court against which first respondent tiled a revision before the District F Court, but the revision was dismissed on 15.3.1994. First respondent tiled a second application stating it to be under Order 30 Rule 4 of the Code, for getting himselfimpleaded. However, that application was also dismissed by the trial court. He then filed a writ petition under Article 227 of the Constitution challenging the earlier order passed by the District Court on G 15.3.1994 as well as the latter order passed by the trial court dismissing his second application. The writ petition was later converted into a revision petition. During the pendency of the said revision the suit tiled by the plaintiff was decreed by the trial court on 26.5.1994 and the decree was confirmed in appeal by the District Court on 29.11.1994. But learned Single Judge passed the impugned order en 30.1.1995, allowing the second H application of the first respondent.

ANOKHE LAL v. RADHAMOHAN BANSAL [THOMAS, J.] 311

It is rather strange that learned Single Judge allowed a person to be A impleaded in a non-pending lis. This factual position is not in dispute that on the date of the impugned order the suit or the appeal was not pending before any court at all. This is not a case where learned Single Judge was not aware of the fact that suit was decreed by the trial court and that decree was later confirmed by the District Court in appeal. We have noted from the impugned order itself that learned Single Judge was informed of B the aforesaid development. However, an observation has been made in the order that it is open to the first respondent to proceed with his remedy in accordance with law.

As no suit was pending either in the trial court or in the appellate court when the High Court took up the revision of the first respondent for C argument w'iat was the need or occasion to pass an order for impleading a person as a new party in the suit? The revision should only have been dismissed as infructuous. Even otherwise, the court should have been very circumspect in dealing with the application of a third party seeking leave to bcome party in the suit, when the plaintiff, who is the dominus litis of the suit, is opposed to it. If the consequence of such addition would involve D a de nova trial, the court should normally have disallowed the application.

Way back in 1931 the Privy Council did not allow an application for impleadment on the ground that such a course might throw open a de novo trial of the suit, even after noticing that the party sought to be imp leaded was not merely a proper party but a necessary party in the suit. Naba Kumar Hazra and Anr. v. Radhashyam Mahish and Ors., AIR 1931 PC E

229. Here, even the first respondent has no case that he is a necessary party to the suit.

That apart, even on merits, first respondent's application filed under Order 30 Rule 4 is not maintainable on the facts of this case. The said Rule is quoted below: F

"4. Right of suit on death of partner-{!) Notwithstanding anything contained in Sec. 45 of the Indian Contract Act, 1872 (9 of 1871) where two or more persons may sue or be sued in the name of firm under the foregoing provisions and G 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 a party to the suit.

(2) Nothing in sub-rule (1) shall limit or otherwise affect H

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."

The aforesaid Rule 4(1) is clearly an exception to Section 45 of the Contract Act. The principle made out in Section 45 applies to a situation where one person has made a promise to two or more persons jointly . The right to claim performance of the contract arising out of such a promise would then rest with those promises together during their joint lives and C after the death of any of them, such right would devolve on the representative of the deceased promisee jointly with the surviving promisee.

Thus if the joint promisees were partners of a firm this provision obliges the legal representative of a deceased partner to join the rest in enforcement of the right to have performance of the contract. This is the nub of Section 45 of the Contract Act. But a conflict of opinions arose between different D High Courts regarding interpretation of the rule involved in the said Section.

High Courts of Madras, Bombay and Allahabad took the view that in a suit for enforcement of the said right by a firm legal representatives of a deceased partner need not be imp leaded, whereas the Calcutta High. Court took the contrary view that in such a case legal representatives were necessary parties.In fact sub-rule (1) of Rule 4 of Order 30 has been E prescribed to resolve the said conflict by diluting the rigour contained in the rule embodied in Section 45 of the Contract Act in relation to a suit involving a partnership firm.

What sub-rule (1) of Rule 4 in Order 30 of the Code provides is that it is not mandatory to join the legal representative of a deceased partner as F a party in the said suit. What sub-rule (2) says, in other words, is that subrule ( 1) is not a hindrance to any legal representative of a deceased partner to get himself impleaded if he has otherwise any right to do so. It is, therefore, clear that sub-rule (2) does not create any right as such for a legal representative to get impleaded in a suit, but it only operates as an exception to sub-rule (1). At any rate, Rule 4(2) of Order 30 cannot come G into operation in a situation where Order 1 Rule 10 of the Code cannot be invoked.

We, therefore, allow this appeal and set aside the impugned order.

No costs.

H B.K.S.

Appeal allowed.