BRIJ KISHORE SHARMA AND ANR.versusM/S RAM SINGH AND SONS AND ORS.

A                     BRIJ KISHORE SHARMA AND ANR.
                                            v.
                    MIS RAM SINGH AND SONS AND ORS.

                                 OCTOBER 1, 1996

B                [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

            Code of Civil Procedure, 1908/Co11tract Act, 1872.

           Order 30, Rule 4/s.45-Parties to suit-Suit for recovery of mo11ey le11t
C   by a part11ership finn under a promissory 11ote-Trial Court dismissi11g the siut
    on the ground that since 011e of the partners died pending suit and neither he
    had been made co- nomi11ee party nor his legal representatives were brought
    on record, the suit was bad for non-joinder of necessary and proper par-
    ties-Held, by operation of Sub-nile(l) of Rule 4 of Order XXX, despite the
D   embargo u/s.45 of Contract Act, it is not necessary that legal representatives
    of deceased partner who die$ whether before institution of the proceedings or
    dwing the pendency of the proceedings should be substituted as a co-nominee
    party plaintiff-defendant to the suit-High Court was right in its view that the
    suit is maintainable-As regards execution of promissory note by all the
    persons, it is a question of appreciation of evidence and the High Court as
E   the final court of fact has held that the promissory note was executed by all
    the persons and, there[ore, the defendants are liable for payment of the
    amount due thereunder.

            Partnership Act, 1932.

F         S.69-Suit by partners--One of the partners not made party plain-
    tiff-Held, suit is not bad for non-joinder of necessary and proper parties.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1562 of
    1980.
G
          From the Judgment and Order dated 2.5.80 of the Patna High Court
    in A. No. 306 of 1969.
                                                                                       ......
            C.L. Sahu for the Appellants.

H           S.K. Dhokakia and Ms. Manjeet Chawla for the Respondents.
                                      152
                         B.KSHARMAv.RAMSINGH                                153

       The following Order of the Court was delivered:                             A

       This appeal by special leave arises from the judgment of the Division
 Bench of the Patna High Court made on May 2, 1980 in appeal from
 Original Decree No. 306/69.

       The respondents filed a suit to recover a sum of Rs. 58,880 on the          B
 foot of a promissory note dated April 1, 1960 to recover the principal sum
 of Rs. 46,380 and interest which accrued thereon. The trial Court dismissed
 the suit. But on appeal, the High Court allowed the appeal and decreed
 the suit. Thus, this appeal by special leave.

         Two points were raised in the written statement and argued by the
                                                                                   c
  respondents. The first point that was addressed and pressed for considera-
  tion is that the respondent-plaintiff being a partnership firm, has not
  impleaded all the partners co-nominees as plaintiff-party to the suit. Resul-
  tantly, the suit is not maintainable. Pending suit, one of the partners died
  and the legal representatives were not brought \:"In record. The question,       D
  therefore, was: whether the suit is liable to be dism:issed for non-joinder of
· the necessary and proper parties? The trial Court as well as the High Court
  recorded as a fad that the respondent- firm is a registered partnership firm
  and, therefore, under Section 69 of the Partnership Act, the suit is main-
  tainable. The trial Court dismissed the suit on the ground that since one        E
  of the partners died pending suit and the legal representatives were not
  brought on record, suit was bad for non-joinder of necessary and proper
  parties. The controversy is covered by the provisions of Order XXX of the
  CPC which gives spxial procedure for filing the suit by or against a
  partnership firm carrying on business in the name other than its own. In this
  case, the relevant provision is Rule 4 of Order XXX which provides thus:         F

         "Order XXX Rule 4: (1) Notwithstanding anything contained in
         Section 45 of the Indian Contract Act, 1872 (of 1872), where two
         or more persons may sue or be sued in the name of a firm under
         the foregoing provisions and any of such persons dies, whether G
         before the institution 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.

         (2) Noting in sub-rule (1) shall limit or otherwise affect any right
         which the legal representative of the deceased may have.-            H
    154                   SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A         (a) to apply to be made a party to the suit, or

          (b) to enforce any claim against the survivor or survivors."

          Sub-rule (2) is not relevant for the purpose of this case. By operation
    of sub-rule (1) of Rule 4 of Order XXX, despite the embargo under
B   Section 45 of the Indian Contract Act, it is not necessary that the legal
    representatives of the deceased partner who dies whether before institution
    of the proceedings or during the pendency of proceedings, should be
    substituted as a co-nominee party plaintiff/defendant to the suit. The trial
    Court, therefore, was not correct in holding that the suit is bad for
C   non-joinder of necessary party. The High Court was right in the conclusion
    that the suit is maintainable.

        The next plea raised was that the renewal of promissory note was not
  executed by the appellants. The ground in support thereof was that one of
  the coparceners who was the signatory to the promissory note was
D hospitalised. Consequently, he could not have executed the promissory
  note on the even date. The High Court has gone into depth of this aspect
  by consideration of the entire evidence on record, mostly documentary
  evidence. Since it is a question of appreciation of evidence and the High
  Court, as the final court of fact, on appreciation thereof came to the
  conclusion that the promissory note came to be executed by all the persons
E and, therefore, the appellants-defendants are liable for the payment of the
  amount duf' thereunder. This being the finding of fact, we do not find any
  error of law in the finding recorded by the High Court.

          The appeal is accordingly dismissed. No costs.

F R.P.                                                        Appeal dismissed.


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