LAKHMICHAND Vs. FIRM CHIRONJILAL DAULATRAM

JUDGEMENT

(1.) THE matter came with the application for hearing on I. A. No. 2154/85 for early hearing, which is allowed and the matter is heard today on merits. By the impugned order two petition were disposed of, one was by the petitioner, under Order 22 Rule 3 Civil Procedure Code; and the other by the non-petitioner, under Order 30 Rule 4 Civil Procedure Code. By the impugned order passed on 2-11-1983 the application of the petitioner was dismissed while the prayer of the non-petitioner was allowed. The petitioner's prayer was for substitution as legal representatives in place of deceased Mathurabai, who was one of the plaintiffs in the suit. In his petition non-petitioner No. 4, Kunjbihari, submitted that the suit was filed by and on behalf of the partnership firm, in which he as well as deceased Mathurabai were partners. The suit did not abate in view of the provisions of Order 30 Rule 4 (1)Civil Procedure Code and that he be allowed to prosecute the suit. The only ground on which the petition is pressed today by Shri R. D. Jain is that the trial Court over-looked the provisions of sub-rule (2) of Rule 4 of Order 30 Civil procedure Code and dismissed the application in limine without even conducting inquiry into the question as to whether the petitioners were "legal representatives" of deceased Mathurabai. Shri Jain submits that their right to be impleaded as "legal representatives" of deceased Mathurabai is not taken away by sub-rule (2) of rule 4 of order 30 Civil Procedure Code which expressly reserves their right to be substituted. This is what they had wanted and they were to be heard on their right to do so. But the right was nipped in the bud. The trial Court took a view, on an erroneous construction of the provisions of Rule 4 of Order 30 Civil Procedure Code, that the petitioners were not entitled to be heard on their application under Order 22 Rule 3 Civil Procedure code. I have no doubt, this grievance has sufficient merit though Shri Apte has very forcefully and strenuously contended to the contrary on facts as well as on law. First, facts, Shri Apte submits that not only Kunjbihari as a surviving partner had a sole claim to prosecute the suit, he had also the right to do so as the sole heir and legal representative of deceased Mathurabai. He submits that during her life-time deceased Mathurabai has sworn an affidavit to this effect. That apart, she had also executed a registered will in his favour. Further fact also is that Kunjbihari was a near relation of the deceased Mathurabai. He was son of real brother of the deceased. In any view of the matter, therefore, he had better claim over that of the petitioners, who are agnates of deceased's husband. These submissions have sufficient force but, unfortunately, they received no consideration of the trial Court. No decision thereon was rendered by the trial Court in the impugned order. This happened due to the fact that the trial Court took a wrong view of the law and closed its eyes after reading sub-rule (1) of Rule 4 of Order 30 Civil Procedure Code. The Court stayed its hands and refused to make any inquiry into any fact pleaded by any side- Shri Apte read out to me the application made by the petitioner to support his contention that no case for substitution was made out by the petitioner as they could not claim to be "legal representatives" within the meaning of sub-rule (2) of Rule 4 of Order 30 Civil procedure Code as well as of section 2 (11) Civil Procedure Code. Unfortunately, this matter was not enquired into and no decision was rendered thereon. Shri Apte had to fairly concede that this position is undisputable. My attention was drawn by Shri Apte to several decisions to canvass the law in support of the impugned order. However, unfortunately, law does not help him. The reliance on the decisions cited, in my opinion, is undesirable as they have no bearing on the question agitated in this case. The decision in Gambhirmal (AIR 1963 SC 243)was on the question of liability of partners under a decree in the event of death of one partner that could be enforced in execution proceedings. The decision does not at all deal with sub-rule (2) of Rule 4 of Order 30 Civil Procedure Code. Chhotelal (AIR 1951 Nagpur 448) also does not help Shri Apte. Herein also the provisions of sub-rule (2) of Rule 4 of Order 30 Civil Procedure Code did not receive their Lordships' consideration and decision was rendered on the construction primarily of Rule 1 of order 30 Civil Procedure Code. Indeed, in this case the Court held that when the defendants on suit are confident and advantage was not taken of the provisions of Rule 1 the provisions of Rule 4 would not come to play. Shri Apte concedes that the decision in Shrikishan (1961 MPLJ 538 = AIR 1961 MP 314) also deals with sub-rule (1) of Rule 4 of Order 30 Civil Procedure Code. However, I read something more in the decision which comes against Shri Apte's contention. It was held in Shrikishan (supra) that "representatives" of a deceased partner are a necessary party to a suit. It was a suit brought by partner for debt accrued and due to the partnership in the lifetime of the deceased partner. The question, therefore, necessarily is that the Court must consider the question of proper representation of interest of the deceased partner in such a case. The matter does not end at Sub-rule (1) of Rule 4 of Order 30 civil Procedure Code which is merely an enabling provision which merely enables one of the partners to the suit to prosecute or defend the suit filed on behalf of the partnership. In view of the above discussion of law and facts I have no hesitation to say at once that the application of the petitioner for substitution made under Order 22 Rule 3 Civil procedure Code was dismissed perfunctorily, hastily and arbitrarily. The Court did not apply its mind to the provisions pleaded or even to the provision of section 2 (11) Civil procedure Code. There is a duty on the Court imposed by Rule 5 of Order 22 Civil procedure Code. In case an application is made under Rule 3 to determine the question as to whether the applicants were "legal representatives". In discharging its duty in the instant case, the trial Court miserably failed. This has resulted in jurisdictional failure. This error of jurisdiction has to be and must be corrected to prevent gross failure of justice in this case. Accordingly, the impugned order has to be quashed, albeit partially. The finding, conclusion and the order of the trial Court allowing non-petitioner No. 4 to prosecute the suit remains intact and is not disturbed. But the other part of the order by which he rejected the petitioner's claim outright has to be, and is, quashed. The trial Court shall consider afresh the application of the petitioners for substitution in accordance with the relevant provisions. Keeping in view the provisions of sub-rule (2) of Rule 4 of order 30 Civil Procedure Code, it shall render a legal, proper and valid order after making necessary inquiry and hearing parties. In the result, the application succeeds partially and is allowed partially. No costs. This matter, however, has to be disposed of expeditiously, within two months, finally, after hearing the parties. Revision application partly allowed.