MAHENDRA C SHAH Vs. SHRIMATI P SHAH

JUDGEMENT

(1.) IN the month of October 1976, the plaintiffs namely, Mahendra Chimanlal shah (P1) Ramesh Chimanlal Shah (P2), Narendra Chimanlal Shah (P3), and Kokila girdharlal Jhaveri (P4) filed and salt for rendition of account in relation to partnership firm M/s. Vora Brothers constituted under the Deed of partnership dated 31. 3. 1952 against the defendants, namely, Panalal Bhikhabhai Shah (D1), Sanalal chunilal Shah (D2), Babulal Karsanlal Vora (D3), Chandrakant Karsanlal Vora (D4), Suryakant Karsanlal Devawala (D5), Rajendra Karsanlal Vora (D6), Pankaj karsanlal Vora (D7), Sanjay Karsanlal Vora (D8), Dhanlakshmi Karsanlal Vora (D9) and Pushpa Sevantilal Shah (D 10 ). The defendant no. 1 Panalal Bhikhabhai shah died on 27. 10. 1979 and his legal representatives were brought on record. Thereafter it appears that on 5. 12. 1983 Plaintiff no. 3 Narendra Chimanlal Shah died. However, no application was made for bringing his legal representatives on record in time. Then on 4. 12. 1986 defendant no. 2 Sanalal Chunilal Shah died and as regards him also no application was made in time to bring his legal representatives on record. Almost after 8 years of the death of plaintiff no. 3 and after five years of the death of defendant no. 2, in the year 1991 chamber summons was taken out for bringing on record the legal representatives of deceased plaintiff no. 3 and deceased defendant no. 2. The said chamber summons was registered as chamber summons No. 111 of 1991 and was dismissed by this Court on 26. 3. 1992 upon dismissal of the chamber Summons, on 9-6-1992 by way of consequential order the Court dismissed the suit having abated. By this notice of motion taken out by the 1st plaintiff, it is prayed that order dated 9. 6. 1992 passed by this Court treating the suit as disposed of on the footing that the suit has abated be set aside and suit be restored to file and 1 st plaintiff be permitted to proceed with the above suit.

(2.) THE notice of motion deserves to be dismissed in view of the law laid down by the Apex Court in Ramagya Prasad Gupta and others vs. Murli Prasad and others, AIR 1972 SC 1181, wherein the Apex Court ruled that in the appeal arising out of suit for dissolution of the partnership and rendition of accounts on death of one of the partners in appeal and failure to bring his legal representatives on record results in abatement of the appeal as a whole. In paragraph 16 of the report the apex Court laid down three tests to find out whether in the matter where one of the partners has died and his legal representatives have not been brought on record, the appeal abates as a whole. The said tests are equally, applicable for consideration of question in the suit where one of the defendant partners dies and his legal representative is not brought on record for consideration of the question whether the suit has abated as a whole or not. In paragraph 16 of the said report the Apex court has ruled thus -

(3.) APPLYING the first test laid down by the Apex Court, it would be clear that if the suit is allowed to be proceeded by remaining plaintiffs against remaining defendants, there would be inconsistent decrees because as against defendant no. 2 (one of the partners) the suit stands dismissed as abated since his legal representatives have not been brought on record and as against other defendants the decree may be passed. In this view of the matter, the first test is fully satisfied and it cannot be said that the suit has abated only against defendant no. 2 and not against other defendants.