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PETITIONER:

ANOKHE LAL

Vs.

RESPONDENT:

RADHAMOHAN BANSAL & OTHER

DATE OF JUDGMENT: 01/11/1996

BENCH:

MADAN MOHAN PUNCHHI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:

J U R G M E N T

THOMAS, J.

Leave granted.

A landlord has come up in challenge Of an Order Passed

by a Single Judge Of the Madhya Pradesh High Court at

Jabalpur, by which the application of first respondent to

get himself impleaded as a party in a suit has been granted.

Facts are these:

Appellant - landlord filed the suit for eviction of his

tenant (M/s. Hanuman Prased Shriram - a partnership firm)

from a building leased out to the firm on the two grounds

envisaged in Section 12(1)(a)& (F) of the Madhya pradesh

Accommodation Control Act, 1961. The suit was contested by

the firm and written statement for the firm was signed by

one of its partners (Motiram). During the pendency of the

suit, first respondent in this appeal (who is the son of

Hanuman Prasad - another partner of the firm who died) filed

an application under Order I Rule 10(2) of the Code of Civil

procedure (for short 'the Code') to get himself impleaded as

an additional defendant in the suit. The application was

dismissed by the trial Court against which first respondent

filed a revision before the District Court, but the revision

was dismissed on 15.3.1994. First respondent filed a second

application stating it to be under Order 30 Rule 4 of the

for getting himself impleaded. However, that application was

also dismissed by the trial court. He then filed a writ

petition under Article 227 of the Constitution challenging

the earlier order passed by the District Court on 15.3.1994

as well as the latter order passed by the trial court

dismissing his second application. The writ petition was

later converted into a revision petition. During the

pendency of the said revision the suit filed by the

plaintiff was decreed by the trial court on 26.5.1994 and

the decree was confirmed in appeal by the District Court on

29.11.1994. But learned Single Judge passed the impugned

order on 3O.1.1995, allowing the second application of the

first respondent.

It is rather strange that learned Single Judge allowed

a person to be impleaded in a non-pending lis. This factual

position is not in dispute that on the date of the impugned

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order the suit or the appeal was not pending before any

court at all. This is not a case where learned Single Judge

was not aware of the fact that suit was decreed by the trial

court and that decree was later confirmed by the District

Court in appeal. We have noted from the impugned order

itself that learned Single Judge was informed of the

aforesaid development. However, an observation has been made

in the order that it is open to the first respondent to

proceed with his remedy in accordance with law.

As no suit was pending either in the trial court or in

the appellate court when the High Court took up the revision

of the first respondent for arqument what was the need or

occasion to pass an order for impleading a person as a new

party in the suit? The revision should only have been

dismissed as infructuous. Even otherwise, the court should

have been 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 suits is

opposed to it. If the consequence of such addition would

involve a de novo trial the court should normally have

disallowed the application. Way back in 1931 the privy

Council did not allow an application for impleadment on the

ground that such a course might throw open a de novo trial

of the suit, even after noticing that the party sought to be

impleaded was not merely a proper party but a necessary

party in the suit. (Naba Kumar Hazra and anr. vs. Radhashyam

Mahish and ors., AIR 1931 PC 229) Here, even the first

respondent has no case that he is a necessary party to the

suit.

That apart, even on merits, first respondent's

application filed under Order 30 Rule 4 is not maintainable

on the facts of this case. The said Rule is quoted below:

"4. Right of suit on death of

partner:- (1) Notwithstanding

anything contained in Sec.45 of the

Indian Contract Act, 1872 (9 of

1871), where two or more persons

say sue or be sued in the name of

firm under the foregoing provisions

and any of such person dies,

whether before the institution or

during the pendency of any suit lt

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 surviror or survivors."

The aforesaid Rule 4(1) is clearly an e exception to

Section 45 of the Contract Act. The principle made out in

Section 45 applies to a situation where one person has made

a promise to two or more persons Jointly. The right to claim

performance of the contract arising out of such a promise

would then rest with those promisees together during their

joint lives and after the death of any of them, such right

would devolve on the representative of the deceased promisee

jointly with the surviving promisees. Thus if the joint

promisees were partners of a firm this provision obliges the

legal representative of a deceased partner to join the rest

in enforcement of the right to have performance of the

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contract. This is the nub of Section 45 of the Contract Act.

But a conflict of opinions arose between different High

Courts regarding interpretation of the rule involved in the

said Section. High Courts of Madras, Bombay and Allahabad

took the view that in a suit for enforcement of the said

right by a firm legal representatives of a deceased partner

need not be impleaded, whereas the Calcutta High Court took

the contrary view that in such a case legal representatives

were necessary parties. In fact sub-rule (1) of Rule 4 of

Order 30 has been prescribed to resolve the said conflict by

diluting the rigour contained in the rule embodied in

Section 45 of the Contract Act in relation to a suit

involving a partnership firm.

What sub-rule (1) of Rule 4 in Order 30 of the Code

provides is that ii is not mandatory to join the legal

representative of a deceased partner as a party in the said

suit. What sub-rule (2) says, in other words, is that sub-

rule (1) is not a hindrance to any 1egal representative of a

deceased partner to get himself impleaded if he has

otherwise any right to do so. It is therefore, clear that

sub-rule (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 sub-rule (1). At any rate, Rule

4(2) of Order 30 cannot come into operation in a sutuation

where Order 1 Rule 10 of the Code cannot be invoked.

We, therefore, allow this appeal and set aside the

impugned order. No costs.