ANOKHE LAL versus RADHAMOHAN BANSAL AND OTHERS.

Citation: [1996] SUPP. 8 S.C.R. 308 · Decided: 01-11-1996 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Appeal(s) allowed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

A 
ANOKHE LAL 
v. 
RADHAMOHAN BANSAL AND OTHERS. 
NOVEMBER 1, 1996 
B 
[MADAN MOHAN PUNCHHI AND K.T. TEOMAS, JJ.] 
Code of Civil Procedure, 1908-0r. 30 R. 4 (2) and Sec. 115-Eviction 
suit against a firm, contested by one of its partners-Seeking impleadment 
of the son of a deceased partner-Rejected by trial court-Revision filed-
During pendency of revision, eviction suit was decreed and was confirmed 
C in appeal-Revisional court, despite being aware of this fact. impleaded 
third party-Held, such impleadment involves de novo trial and should not 
be allowed-Hence, revision infructuous. 
Code of Civil Procedure, 1908-0rder 30 Rule 4 (2) and Order 1 
Rule 10(2)-Scope of-Suit by or against firm-Jmpleadment of legal 
D representative of deceased partner as an additional defendant-Held 0. 
30, R. 4(2) does not create any right, only operate as exception to sub rule 
(1) and cannot come into operation where 0.1, R. JO cannot be invoked. 
Code of Civil Procedure, 1908-0rder 30 Rule 4-Scope of-It does 
E not create any right for impleadment of a legal representative, but only 
operate as an exception to S. 45 of Contract Act. 
Appellant-Landlord tiled a suit for eviction against a partnership 
firm. One of the partners defended the suit and tiled written statement 
on behalf of the firm. Respondent no. I, son of a deceased partner, 
F tiled an application under Or. I, R. 10(2) CPC to get himself impleaded 
in the suit as a defendant, but it was rejected by the trail court. 
Revision was filed before the District Court, but the same was also 
rejected. 
G 
Respondent no. I, then filed a Second application before the 
trial court under Or. 30, R. 4 CPC for getting himself impleaded in 
the suit which was also dismissed. 
Then, he filed a Writ Petition under Article 226 of the 
Constitution of India, challenging the orders of District Court as well 
H as of the trial court. This Petition was later on converted into a revision 
308 
ANOKHE LAL v. RAD HAM OHAN BANSAL 
309 
petition. During the pendency of this revision, the suit of the plaintiff A 
was decreed and was later on confirmed in appeal by the District 
Court. In revision, th'e single judge despite being aware of the said 
fact, by his impugned order, allowed the Second application of the 
respondent no. I. Hence, this appeal by special leave. 
Allowing the appeal, this Court 
B 
HELD: I.I. Court should be very circumspect in dealing with 
the application of a third party seeking leave to become party in the 
suit, when the plaintiff, who is the dominus litis of the suit, is opposed 
to it. If the consequence of such addition would involve a de novo 
trial, the court should have disallowed the application. 
C 
1.2 It is strange that the single judge allowed a person to be 
impleaded in a non-pending lis, despite being aware of the fact that 
no suit or appeal was pending before any court. However, an 
observation had been made in the order that 'it is open to the 
respondent no. 1 to proceed with his remedy in accordance with law.' D 
There was no need or occasion to pass such an order for impleading a 
person as a new party since the suit was not pending. When the High 
Court took up the revision for argument, no suit was pending. In 
such a case revision should have been dismissed as infructuous. 
Naba Kumar Hazra v. Radhashyam Mahish, AIR (1931) PC 229, 
relied on. 
2. The application of the respondent no. 1, under Or. 30 R.4, is 
E 
not maintainable on the facts of the case. Or. 30 R. 4 is only an 
exception to Section 45 of the Contract Act and has been prescribed F 
to dilute the rigour contained id the rule regarding partner•hip firm 
in Section 45. The contents of R. 4 (1) and (2) of Or. 30 CPC, clearly 
indicates that rule 4(2) does not create any right as such for a legal 
representative to get impleaded in a suit, but it only operates as an 
exception to Rule 4(1). At any rate, Rule 4(2) of Order 30 cannot G 
come into operation in a situation where Order 1, Rule 10 CPC cannot 
be invoked. Accordingly, tl:e impugned order passed in revision is set 
aside. (311-F, 312 B, E-H] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 13716 of 
1"6. 
H 
310 
SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R. 
A 
From the Judgment and Order dated 30.1.95 of the Mdhya Pradesh 
in C.R. No. 969 of 1994. 
Vivek Gambhir for the Appellant. 
B 
H.M. Singh for the Respondent No. I 
The Judgment of the Court was delivered by : 
THOMAS, J. Leave granted. 
C 
A landlord has come up in cha
Excerpt shown. Read the full judgment & AI analysis in Lexace.