DEVILAL Vs. HIMAT RAM

JUDGEMENT

(1.) THIS Order may be treated as one in continuation of my order dated 21-9-71 whereby I held that the appeal has abated aua the interest of the respondent himmatram deceased, who died during the pendency of this appeal. The case was then adjourned to enable the parties to argue the question whether the appeal has abated as a whole?

(2.) IT may be observed that it is the admitted case of the parties that all the defendant-respondents had jointly taken a contract for construction of a Town Hall of Udaipur as partners even though the contract was sanctioned by the City corporation of Udaipur in the names of defendants Himmatram and Narottam Swaroop only. It is further borne out from the allegations contained in the plaint and admitted by the defendants that while entering into a subcontract with the plaintiff-appellant Devilal, the defendant Kanaiyalal acted as an agent for the rest of the partners. It further appears from para No. 12 of the plaint that the partnership was for a single venture only, namely construction of the Town Hall of udaipur. In the relief clause the plaintiff claimed that a decree for Rs. 6,500/- be granted against the defendants jointly and severally. The trial Court decreed the plaintiff's suit against all the defendants jointly and severally for a sum of Rs. 5375. 99 paise. In appeal the learned District Judge, Udaipur reduced the decretal amount to Rs. 1673. 09 paisa and awarded interest pendente lite at 6% per annum on the said amount. The plaintiff Devilal, therefore, filed this second appeal.

(3.) THE surviving respondents were undoubtedly the partners of the deceased respondent Himmat Ram. The contention of the learned counsel for the appellant is that the right to sue or for the matter of that, to prosecute the appeal survives against the surviving defendants alone and consequently the appeal is not liable to be dismissed on account of not bringing on record the legal representatives of the deceased Himmat Ram. In support of his contention he has relied upon the provisions of Order 30, Rule 4, Civil P. C. . and a Bench decision of this Court gajjanand v. Sardarmal, 1962 Raj LW 65 = (AIR 1961 Raj 223 ). Order 30, Rule 4. Civil P. C. provides as follows:-"4. (1) Notwithstanding anything contained in Section 45 of the Indian contract Act, 1872, where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit. (2) Nothing, in Sub-rule (1) shall limit or otherwise affect any right which the legal representative of the deceased may have- (a) to apply to be made a party to the suit, or (b) to enforce any claim against the survivor or survivors".