M S PEARL SOUND ENGINEER Vs. POORAN CHAND

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for ejectment from the premises in question and for recovery of arrears of rent and mesne profits.

(2.) THE case of the plaintiffs was that the defendant-appellant had occupied the accommodation in question as a tenant in the year 1956 agreeing to pay rent at the rate of Rs. 250 per annum and water charges at the rate of Rs. 5/62.00. The rate of rent was subsequently enhanced to Rs. 350.00 per annum with effect from 1st January, 1962. It was alleged that the premises belonged to the partnership firm Pooran Chand and Sons, the plaintiff No. 1 in which the plaintiffs 2 to 7 were partners. The said accommodation was said to have been constructed after 1st January, 1951. The plaintiffs terminated the tenancy of the defendant by notice dated 25th May, 1963, and as he failed to comply with the same, a suit for the aforesaid reliefs was filed.

(3.) LEARNED counsel for the respondents at the outset raised a preliminary objection to the maintainability of the appeal. He pointed out that Lala Mohan Lal Agarwal, plaintiff No. 2-respondent, had died during the pendency of this appeal and as all his legal heirs were not substituted the appeal abated as against him. It was urged that the appeal, therefore, was not properly constituted and could not be proceeded with and that it had abated as a whole. The learned counsel for the appellants did not dispute the fact that the plaintiff no. 2 had died during the pendency of this appeal and no application for bringing on record his legal representatives was filed within the period of limitation prescribed for it. He, however, submitted that as the suit was filed by a partnership firm M/s. Pooran Chand and Sons, the plaintiff No. 1 in which the plaintiffs Nos. 2 to 6 were partners, it was not necessary to substitute the legal heirs of Mohan Lal deceased in the appeal, in view of the provisions of Rule 4 of Order XXX of the Code of Civil Procedure. The learned counsel for the respondents, however, submitted that the suit was not only filed by the firm M/s. Pooran Chand and Sons but was also filed by its partners, as plaintiffs 2 to 6; hence the provisions of Rule 4 of Order XXX did not apply and as the decree passed by the appellate court below was to the benefit of all the plaintiffs and was, therefore, a joint decree, the appeal has abated in its entirety.