ASHOK KRISHNA NAGVENKAR Vs. HARI VISHNOO LOTLEKAR

JUDGEMENT

(1.) These two revision applications can be conveniently disposed of by a common judgment as the parties to the dispute in these two applications are the same and the dispute also is interrelated. The facts to be set out hereinafter would clearly demonsrate the grievance of the applicants in the two petitions.

(2.) Hari Vishnu Lotlekar and Bhaskar M. Nagvenkar instituted Suit No. 46/69/B in the Court of the Civil Judge, Senior Division, Margao for dissolution and accounts against three defendants, Xembu Purshotam Nagvenkar, Krishna Pandurong Nagvenkar and Sadashiv Nagvenkar. The plaintiffs claimed that the company was constituted by deed dated May 1, 1950, under the provisions of the law of Sociedades por Quotas of 1901 under the name and style of "Nagvenkar and Company". This company, which is equivalent to a partnership firm under the Partnership Act or private limited company under the Companies Act, consisted of the plaintiffs and the defendants as members. The defendants together held 12 3/4 annas interest in the company while the remaining belonged to the plaintiffs. Defendant No. 1 held the lion's share of 6 1/4 annas. The suit was dismissed by the trial court on March 29, 1985, on a preliminary objection. The plaintiffs preferred Appeal No. 18 of 1985 before the District Court, Sough Goa at Margao. During the pendency of the appeal, plaintiff No. 2 and defendant No. 1 died. Defendant No. 3 transferred his share to remaining members. The District Court, by judgment dated January 30, 1987, allowed the appeal and remanded the suit to the trial court for disposal on merits. After remand, the legal representatives of defendant No. 1 were brought on record on July 21, 1987. Defendant No. 2 died on August 15, 1987, and his legal representatives of defendant No. 1 were brought on record on July 21, 1987. Defendant No. 2 died on August 15, 1987, and his legal representatives were also brought on record.

(3.) On November 2, 1987 the plaintiffs filed a an application for amendment of the plaint and the application was numbered as exhibit 137. The plaintiffs claimed that, on the death of defendant No. 2, the company stands automatically dissolved as the number of members stands reduced to one. The plaintiffs claimed that the plaint should be permitted to be amended and the plaintiffs sought a declaration that the sociedate stands dissolved on the death of defendant No. 1 on August 15, 1987. The plaintiffs also sought appointment of the liquidator under article 1.123 of Portuguese Code of Civil Procedure with direction to the liquidator to take account of the company and determine the sums payable towards the share of each of the members. The application was resisted by the legal representatives of defendant No. 2, inter alia, claiming that on the death of defendant No. 2, the suit abates and it is not permissible for the plaintiffs to seek a declaration and accounts in the present suit. According to the legal representatives of defendant No. 2, they were brought on record not in their capacity as members of the company but merely as legal representatives of the deceased member. The trial judge was impressed by the defence and by order dated December 16, 1987, dismissed the application for amendment on the ground that it is untenable in law. The legal representatives of defendant No. 2 have filed a revision application No. 18 of 1988 to challenge certain observations made by the trial court while dismissing the application filed by the plaintiffs for amendment of the plaint. In my judgment the revision application is wholly misconceived. It is not permissible to file a revision application to challenge certain observations made by the trial judge while the final order is in favour of the party. Shri Shinkre, learned counsel appearing on behalf of the legal representatives of defendant No. 2, submitted that the trial judge observed that when the legal representative is brought on record, his status and rights will be the same as of the deceased and this observation is not correct. Learned counsel urged that, under the Portuguese Law, when a member of the company dies, his legal representatives will not automatically become the member of the company unless a separate deed of conveyance is executed. Learned counsel urged that, taking into consideration this position in law, the observation of the trial judge is incorrect. I am not inclined to entertain this submission and exercise my jurisdiction under section 115 of the Code of Civil Procedure. The trial judge has ultimately rejected the application for the amendment and it is not open to a party to file a revision application to challenge some of the observations. Accordingly, revision application No. 18 of 1988 is dismissed with costs.