death of partners in a pending suit or appeal:
WhethEr abates?
The
stipulations in the Code of Civil Procedure (CPC) are cumbersome, it is oftenly
believed. However, the CPC contains the resolution of contingencies as well if
and when such a situation arises. The judicial dicta, in the event of any
perceived ambiguity, clears the air, should the situation arise. The topic
often debated in case of partnership firm. What if a partner or two of the partners
dies during the pendency of a suit or appeal. Whether the suit or appeal shall
abate upon death of a partner or partners or the suit may continue
notwithstanding the death of partner? What are the legal situation in this
regard. The answer is imperative given that the docket of the courts are full
with such situations. The clarity, as a matter of fact has emerged and that too
long back. Though, the same is not as widely understood, perhaps, as it ought
to be. Be that as it may, in the context the Supreme Court has already penned
final word.
As
indicated in a situation perceived as vexed,
the Supreme Court had dealt with a situation of a suit against a partnership firm,
when the partners had died during the pendency of appeal and it was contended
that the appeal shall abate. To elucidate further, the suit related to the eviction
of a partnership firm, a tenant, from the suit property. The respondent no.1 has
filed original suit No. 1010 of 1967 in
the Court of Second Additional Munsif, Agra against a firm styled as "The
Upper India Cables Ltd. and Ors." and its partners constituting the firm
at the relevant time for eviction from the premises occupied by the firm as a
tenant on the ground that the tenant has impaired the value and utility of the
demised premises. The suit was resisted by the defendants-present appellants.
The
suit for eviction was dismissed by the trial Court.
The
respondent-landlord had preferred Civil appeal No. 234 of 1970 in the court of
II Additional Civil Judge, Agra. The appeal of the landlord succeeded and a
decree for eviction was made. There was also a decree for mesne profits and
cost. Aggrieved with the reversal of the judgment, the firm and the partners had
filed Second Appeal No. 1017 of 1971 in the High Court of Judicature at
Allahabad.
When
the appeal was pending two of the partners, Shyam Lal and Gulab Chand died.
This fact came to the notice of the High Court when the appeal was taken up for
hearing. The High Court posed to itself the only question whether the appeal
abated, because, the heirs and legal representative of the two deceased
partners were not substituted within the prescribed period of limitation? It may as well be mentioned that an
application for bringing the heirs and legal representatives of the deceased
partners was admittedly never moved. The High Court had thus held that as the
suit was instituted against the firm and its partners and as the first
Appellate Court has decreed the suit against both of them, the decree of
eviction against the two of the deceased partners has become final and in order
to avoid two conflicting decrees being passed in respect of the same cause of
action the appeal abated as a whole.
It
is this part of the order and judgment of the High Court which is questioned in
the appeal before the hon’ble Supreme Court in Upper India Cable Co. And
Ors. Vs Bal Kishan AIR 1984 SUPREME COURT 1381.
The
Supreme Court has observed that perusal of plaint reveals that the defendant
firm was in occupation of property No. 2191 which is an open piece of land
situated in Mohalla Khirki Kaley Khan, Moti Katara, Agra as a tenant on behalf
of the plaintiff on a monthly rent of Rs. 10/- only. The tenancy commenced from
the 1st day of every English Calendar month. Though the defendant
Ram Narain usually dealt with the plaintiff on behalf of the firm, but it is
claimed by the defendants that they are partners of the firm hence they are
also impleaded as proper parties to avoid controversy.
In
the plaint para 1, the following averments are made. These averments being
material to the disposal of the appeal, and was extracted as under:
“That
the defendant firm was in occupation of property No. 2191 which is an open
piece of land situated in Mohalla Khirki Kaley Khan, Moti Katara, Agra as a
tenant on behalf of the plaintiff on a monthly rent of Rs. 10/- only. The
tenancy commenced from the 1st day of every English Calender month. Though the
defendant Ram Narain usually dealt with the plaintiff on behalf of the firm,
but it is claimed by the defendants that they are partners of the firm hence
they are also impleaded as proper parties to avoid controversy”.
This
averment was not controverted.
The
Supreme Court, therefore, had to decide whether the order of the High Court
disposing of the Second Appeal preferred by the present appellants as having
abated as the appellants failed to implead heirs and legal representatives of
the two partners who were merely found as proper parties who died pending the
appeal is sustainable or not?
As
per the plaint the plaintiff-landlord had unequivocally treated the firm as the
tenant. The suit for eviction was filed against the firm and against the other
defendants claimed to be the partners of the firm. They were impleaded by the
plaintiff as proper parties. Though, it was open to the plaintiff not to
implead the partners of the firm in view of the provision contained in Order
XXX, Rule 1 of CPC which permits a firm to be sued in the firm's name.
Undoubtedly, if a requisition is received to disclose who are the partners, the
same has always to be complied with. The plaintiff chose to sue the firm and
joined partners as proper parties. The material averment in the plaint is that
firm remained as tenant.
The
point to be adjudicated before the Supreme Court was 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.
According
to the Supreme Court, the Order XXX, Rule 4 provides that notwithstanding
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 to join the firm. Both these aspects were overlooked by the High Court.
The
Supreme Court has further observed that as far as the facts of the case is
concerned the suit as it was framed and instituted was for eviction of the firm
and the firm was impleaded as a party as tenant and the deceased partners were
impleaded merely as 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.
The
moot point is, whether on the death of a proper party whose heirs and legal
representatives are not substituted and when no relief was claimed against such
a party would the suit or appeal abate, more so, when the parties against whom
relief is claimed is very much there and is prosecuting its appeal. The
position boils down to this that the two of the partners who were appellants
along with the firm in the second appeal before the High Court died during the pendency
of the appeal. The issue arises for consideration 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
Supreme Court has held that in negative.
Therefore,
what emerges is that 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. Hence, it was held that
the High Court was in error in disposing of the appeal as having abated. The appeal was therefore allowed and order of the High Court disposing of the
appeal as having abated was quashed and set aside and the matter was remitted
to the High Court for disposal of the second appeal on merits and as per law.
----
Anil K
Khaware
Founder &
Senior Associate
Societylawandjustice.com
