BRIJ KISHORE SHARMA AND ANR. versus M/S RAM SINGH AND SONS AND ORS.

Citation: [1996] SUPP. 7 S.C.R. 152 · Decided: 01-10-1996 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Dismissed
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Judgment (excerpt)

A 
BRIJ KISHORE SHARMA AND ANR. 
v. 
MIS RAM SINGH AND SONS AND ORS. 
OCTOBER 1, 1996 
B 
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] 
Code of Civil Procedure, 1908/Co11tract Act, 1872. 
Order 30, Rule 4/s.45-Parties to suit-Suit for recovery of mo11ey le11t 
C by a part11ership finn under a promissory 11ote-Trial Court dismissi11g the siut 
on the ground that since 011e of the partners died pending suit and neither he 
had been made co- nomi11ee party nor his legal representatives were brought 
on record, the suit was bad for non-joinder of necessary and proper par-
ties-Held, by operation of Sub-nile(l) of Rule 4 of Order XXX, despite the 
D embargo u/s.45 of Contract Act, it is not necessary that legal representatives 
of deceased partner who die$ whether before institution of the proceedings or 
dwing the pend ency of the proceedings should be substituted as a co-nominee 
party plaintiff-defendant to the suit-High Court was right in its view that the 
suit is maintainable-As regards execution of promissory note by all the 
persons, it is a question of appreciation of evidence and the High Court as 
E the final court of fact has held that the promissory note was executed by all 
the persons and, there[ ore, the defendants are liable for payment of the 
amount due thereunder. 
F 
G 
Partnership Act, 1932. 
S.69-Suit by partners--One of the partners not made party plain-
tiff-Held, suit is not bad for non-joinder of necessary and proper parties. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1562 of 
1980. 
From the Judgment and Order dated 2.5.80 of the Patna High Court 
in A. No. 306 of 1969. 
C.L. Sahu for the Appellants. 
H 
S.K. Dhokakia and Ms. Manjeet Chawla for the Respondents. 
152 
. ....
B.KSHARMAv.RAMSINGH 
153 
The following Order of the Court was delivered: 
This appeal by special leave arises from the judgment of the Division 
Bench of the Patna High Court made on May 2, 1980 in appeal from 
Original Decree No. 306/69. 
The respondents filed a suit to recover a sum of Rs. 58,880 on the 
foot of a promissory note dated April 1, 1960 to recover the principal sum 
of Rs. 46,380 and interest which accrued thereon. The trial Court dismissed 
the suit. But on appeal, the High Court allowed the appeal and decreed 
the suit. Thus, this appeal by special leave. 
Two points were raised in the written statement and argued by the 
respondents. The first point that was addressed and pressed for considera-
tion is that the respondent-plaintiff being a partnership firm, has not 
impleaded all the partners co-nominees as plaintiff-party to the suit. Resul-
tantly, the suit is not maintainable. Pending suit, one of the partners died 
A 
B 
c 
and the legal representatives were not brought \:"In record. The question, D 
therefore, was: whether the suit is liable to be dism:issed for non-joinder of 
· the necessary and proper parties? The trial Court as well as the High Court 
recorded as a fad that the respondent- firm is a registered partnership firm 
and, therefore, under Section 69 of the Partnership Act, the suit is main-
tainable. The trial Court dismissed the suit on the ground that since one E 
of the partners died pending suit and the legal representatives were not 
brought on record, suit was bad for non-joinder of necessary and proper 
parties. The controversy is covered by the provisions of Order XXX of the 
CPC which gives spxial procedure for filing the suit by or against a 
partnership firm carrying on business in the name other than its own. In this 
case, the relevant provision is Rule 4 of Order XXX which provides thus: 
F 
"Order XXX Rule 4: (1) Notwithstanding anything contained in 
Section 45 of the Indian Contract Act, 1872 (of 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 G 
before the institution or during the pendency of any suit, it shall 
not be necessary to join the legal representatives of the deceased 
as a party to the suit. 
(2) Noting in sub-rule (1) shall limit or otherwise affect any right 
which the legal representative of the deceased may have.-
H 
154 
SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R. 
A 
(a) to apply to be made a party to the suit, or 
(b) to enforce any claim against the survivor or survivors." 
Sub-rule (2) is not relevant for the purpose of this case. By operation 
of sub-rule (1) of Rule 4 of Order XXX, despite the embargo under 
B Section 45 of the Indian Contract Act, it
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