BANSIDHAR SATYANARAYN Vs. SAKUNTALA DEVI & ORS.

JUDGEMENT

(1.) This is a combined application made on the part of the first defendant praying for two reliefs. By a letter dated 16th March, 1992, a copy of which (itself undated) is annexed at page-41 of the annexures to the application (the date is ascertainable from the next letter), request was made on the part of the Advocate for the first defendant for furnishing of names and place of residence of all the partners of the plaintiff firm. No reply having been received to that letter or the following letter of the 21st March, 1992, it is said on the part of the defendant that upon the provisions enacted in order 30 Rule 2 of the Code of Civil Procedure the suit should be stayed.

(2.) The next point taken in this application is that as per the certified extract given by the Registrar of firms, appearing at page 38 of the annexures to the application the plaintiff firm originally consisted of one Fakir Chand Jhunjhunwala, his minor son Bimal Kumar Jhunjhunwala and another partner Ram Kissen Jhunjhunwala. The case of the first defendant is that Fakir Chand died in 1989, that his minor son Bimal pre-deceased him in 1984 and Ram Kissen is to be presumed as dead because according to the defendant he has not been heard of in the pail seven years.

(3.) In case all the plaintiffs compendiously described by the name of the partnership firm have died and in case further that their interest to sue has not devolved upon their heirs or successors then and in that event the suit terminates without any possibility of revival. If however, the right to sue possessed by the original plaintiffs survives their death and devolves upon their heirs then and In that event a substitution within time would have to be made to prevent abatement of the suit. In case such an application is not made the suit shall abate automatically, and no order In respect of such abatement need be recorded. Even if a suit abates, such abatement can be set aside by my of an abdication and even if the time prescribed for such application has run out there are provisions for permitting condonation of delay in making of such an application. In this view of the matter and in view of the absence of the partnership deed and the absence of particulars as to the devolution of the interest in the partnership of the aforesaid three persons, it would be Inappropriate in my opinion to record the dismissal of the suit by way of abatement at this stage.