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UNION OF INDIA versus FIRM RAM KRISHNA DAYA RAM

High Court of Judicature at Allahabad

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Union Of India v. Firm Ram Krishna Daya Ram - SECOND APPEAL No. 1691 of 1977 [2004] RD-AH 594 (19 August 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Abatement Application No. 131991 of 2004

On behalf of

Ram Prakash ..... Applicant

In

Second Appeal No. 1691 of 1977

The Union of India Vs. Firm Ram Kishan Daya Ram and Company

With

Civil Misc. Application No. 131993 of 2004

On behalf of

Ram Prakash ..... Applicant

In

Second Appeal No. 1691 of 1977

The Union of India Vs. Firm Ram Kishan Daya Ram and Company

With

Civil Misc. Application No.               of 2004

On behalf of

Ram Prakash ..... Applicant

In

Second Appeal No. 1691 of 1977

The Union of India Vs. Firm Ram Kishan Daya Ram and Company

~~~~~

Hon'ble Dilip Gupta,  J.

Three applications have been filed by the plaintiff respondent in this pending Second Appeal. Through the Application No. 131991 of 2004 the applicant has prayed that the appeal may be dismissed as abated and by the application No. 131993 of 2004, the applicant has prayed that the order dated 19.7.2004 passed by the Court may be recalled. By the third application dated 9.8.2004 it has been prayed that the memorandum of Appeal may be rejected.

I have heard learned counsel for the applicant/respondent and the learned counsel for the appellant. All these applications are being decided by a common order.

Original Suit No. 112 of 1972 was filed by the firm Ram Kishan Daya Ram and Company against the Union of India with a prayer that it may be decreed for Rs. 5500/- together with costs of the suit pendente lite and future interest. The parties in the suit were as follows:-

"Firm Ram Kishan Daya Ram & Co., a registered partnership firm at Gursahaiganj, Tehsil Chhibramau, District Farrukhabad through one of its partner Ram Kishan Plaintiff

Versus

Union of India representing and owner of North Eastern Railway and Eastern Railway. The service of the summons is to be made on the General Manager N.E. Railway at Gorakhpur and on General Manager Eastern Railway at Calcutta Defendant"

It was stated in the plaint that the plaintiff was a registered partnership firm and certain consignment was sent by Railway Wagons put but on arrival of the aforesaid consignment at the destination station it was found that they were badly damaged during transit and, therefore, damages to the extent of Rs. 5500/- along with interest were claimed. The suit was dismissed with costs to the defendant by the trial court. Feeling aggrieved, the plaintiff filed an Appeal, which was allowed and the suit was decreed. The defendant, Union of India, has preferred the present Second Appeal in this Court which was admitted on 22.3.1978 and notice was issued.

This Appeal came up for hearing before the Court on 19.7.2004 when it was noticed that the substantial questions of law had not been formulated by the Court at the time of the admission of the Appeal. The Court accordingly, formulated three substantial questions of law on the said date and directed that the matter may be listed for hearing on 29.7.2004 so as to enable the respondent to have notice of the substantial questions of law. On 29.7.2004 after the matter had been heard for some time, Sri R.C. Pal, learned counsel made a mention that he had been engaged as a counsel for the respondent in this case and so the case may be adjourned for the day so as to enable him to file his Vakalatnama. The case was, accordingly, adjourned and it was directed to be listed on 2.8.2004. On 2.8.2004 Sri R.C. Pal stated that he had filed certain applications which were not on the record and, therefore, the Appeal was directed to be placed on 5.8.2004. On 5.8.2004 the matter was adjourned to 9.8.2004 on the request made by the learned counsel for the respondent.

I shall now consider each of the aforesaid three applications separately.

The order dated 19.7.2004 by which I had formulated the three substantial questions of law is being sought to be recalled on the ground that it had been formulated ex parte and the same should have been formulated after providing an opportunity of hearing to the counsel for the respondent and in support of his contention, the learned counsel relied upon a decision of the Supreme Court in the case of Thiagarajan and others Vs. Sri Venugopalaswamay B. Koil and others, reported in JT 2004 (5) SC 54.

Learned counsel for the appellant, however, submitted that the learned counsel for the respondent Sri V.C. Katiyar refused to accept a copy of the proposed substantial questions of law and that when the matter was taken up in the revised list on 19.7.2004, he also did not appear before the Court even though his name was printed in the Cause List. He further submitted that in any view of the matter, it is the duty of the Court under Section 100(5) of the Code of Civil Procedure 1908 (hereinafter referred to as the ''C.P.C.') to formulate the substantial questions of law and opportunity is then required to be given to the respondent so that it can make its submissions on the substantial questions of law formulated by the Court and this is preciously what was done by the Court because after formulating the substantial questions of law, the matter was adjourned to 29.7.2004 to enable the respondent to have notice of the substantial questions of law. He further submitted that on 19.7.2004 Sri R.C. Pal was not the counsel because he had filed his Vakalatnama only along with the applications on 2.8.2004.

I have carefully considered the submissions advanced by the learned counsel for the parties. From paragraph Nos. 8,9 and 10 of the affidavit filed in support of the application, it is clear that the main thrust is on the fact that the substantial questions of law had been formulated without serving a copy of the proposed substantial questions of law on the learned counsel for the respondent. As stated above, on 19.7.2004 Sri R.C. Pal was not a counsel since he had filed his Vakalatnama only on 2.8.2004. The matter had been taken up but Sri V.C. Katiyar, learned counsel for the respondent did not appear before the Court. However, without going into the controversy as to whether a copy of the proposed substantial questions of law were tendered to Sri V.C. Katiyar or not and whether it was refused by him, it would be seen that proviso to sub-section (5) to Section 100 of the C.P.C. acknowledges the powers of the High Court to formulate the substantial questions of law, if they have not been formulated at the time of the admission of the Appeal either by mistake or by any advertence, with the object of ensuring that no injustice is done to the litigant. The submission of the learned counsel for the applicant respondent that opportunity of hearing is required to be given to the respondent while formulating the substantial questions of law, is not correct. In the case of Thiagarajan and others (supra) it was sought to be argued that after formulating the substantial questions of law at a later stage, the High Court had not put on notice the respondent and given him a proper opportunity to meet the same. It is in this context that the Supreme Court after referring to the case of Kshitish Chandra Purkait Vs. Santosh Kumar Purkait and others reported in JT 1997(5) SC 202 held that the opposite side should be put on notice and given a fair and proper opportunity to meet the point when the High Court exercises its jurisdiction under the proviso to sub-section (5) of Section 100, C.P.C. in formulating the substantial questions of law and if after the formulation of the substantial questions of law, a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. In the present case after the substantial questions of law had been formulated, the matter was adjourned for a week to enable the learned counsel for the respondent to have a fair and proper opportunity so that the natural justice was not denied to him. It may be stated that at the time of hearing of the Appeal it is always open to the respondent to argue that the case does not involve such substantial question of law. There is, therefore, no justification for recalling the order dated 19.7.2004. The application is, accordingly, liable to be rejected.

The second application, being Application No. 131991 of 2004, has been filed with a prayer for dismissing the Appeal as having abated. The reason set out in the affidavit filed in support of the application is that one partner of the Firm Daya Ram died on 8.9.1991 and the other partner Ram Kishan also died on 10.11.1991 during the pendency of the present Appeal before this Court and since the appellant has not substituted the heirs of the deceased partner in Appeal, the Appeal stands abated.

Learned counsel for the appellant, however, submitted that the suit had been filed by the Firm and, therefore, in view of the provisions of Order XXX Rule 4 of the C.P.C. the Appeal does not abate.

It is not in dispute that the Original Suit had been filed by the Firm Ram Kishan Daya Ram and Company, which was a registered Partnership firm. The firm was the plaintiff through one of its partner, Ram Kishan. The first question that arises for consideration is whether in a suit filed by the Firm, is it necessary to implead the Firm as the plaintiff through its partner. This controversy was examined in the case of Messrs. Ram Kumar Ram Chandra Vs. The Dominion of India, reported in AIR 1952, Allahabad 695. The Court noticed that Order XXX, C.P.C. prescribes the procedure in suits by or against firms and even though a firm has got no legal entity, a suit can be filed by the firm in accordance with the provisions contained in Order XXX Rule 1, C.P.C. and there was no requirement in law to implead the firm through the Partner. Paragraph Nos. 7 and 8 of the judgment are quoted below:-

"[7] Order 30 prescribes the procedure in suits by or against Firms and persons carrying on business in names other than their own, and Rule 1 of the said Order, which has been quoted above, permits any two or more persons claiming or being liable as partners and carrying on business to sue and be sued in the name of the firm. The procedure laid down in Rule 1 is obviously intended to avoid a long array of the plaintiffs or defendants and it prescribes a convenient mode of institution of suits by or against the partners collectively in the names of the partners who carry on business under a particular name. Such a suit is, no doubt, a suit by the partners collectively in the name of the firm; but when we consider the partners collectively as a firm it will, in effect, be a suit by a firm. As Order 30 prescribes the procedure for a suit by or against a firm a suit instituted in the manner laid down in Rule 1 of Order 30 will be a suit by the firm. Appendix A to the Code of Civil Procedure which refers to pleadings gives some model titles of suits of different kinds and the title of a suit by a firm is given as "A.B., a firm carrying on business in partnership at ....." It is, therefore, clear that, even though a firm has got no legal entity and as a firm it is not entitled to institute a suit, a suit can be filed by the firm in accordance with the provisions contained in Order 30, and when such a suit is instituted the firm is to be described as "A.B., a firm carrying on business in partnership at ......"

[8] In the present case the firm was so described in the plaint, but the words "through Ram Kumar Adult son of Sarjoo Prasad caste Vaish residing at Naya Ganj, Kanpur, partner of the firm" were added. In law this addition was unnecessary and as such it can be treated as redundant and ignored. The above addition does not and cannot alter the fact that the firm is, in fact, the plaintiff. As the firm had no legal status as such, the suit has been instituted by the firm as representing all the partners. Here we may notice the definition of the term "firm" in the Partnership Act. It has been defined in the said Act in this way:

"Persons who have entered into partnership with one another are called individually "partners" and collectively "a firm," and the name under which their business is carried on is called the "firm name."

It would thus appear that where a suit is instituted in the name of a firm under Rule 1 of Order 30, Civil Procedure Code, it is really a suit by the partners of the firm collectively. The present suit was, therefore, a suit by the firm and the addition of the words through so and so was redundant and of no consequence."

In the case of Sohanlal Pachisia and Co., Vs. Bilasray Khemani and others reported in AIR 1954 Cal. 179 it was held as follows:-

"Mr. Agarwala further contended that as the plaint is not signed by all the partners, the suit is defective and it should therefore be dismissed. It appears to me that this contention is also without substance. It has been held by the Rangoon High Court in - ''Subramanian Chettyar v. T.R. M.T.S.T. Firm of Ela', AIR 1935 Rang 209 (I) that the correct way of bringing a suit under Rule 1 of Order 30 of the Code of Civil Procedure, is to bring it in the name of the firm as plaintiff, and no other name should be mentioned as plaintiff at the head of the plaint, but in the signature and verification of the plaint, the person signing and verifying should describe himself as one of the partners of the firm which brings the suit: see also - ''Nur Mohamad v. Rahman', AIR 1932 Nag 137 (2) (J) and - ''Bhadreswar Coal Supply Co. v. Satischandra Nandi and Co', AIR 1936 Cal 353 (K)."

Similarly in the case of Firm Gopal Company Ltd., Bhopal and another Vs. Firm Hazarilal Company, Bhopal reported in AIR 1963 MP 37, the Court held as follows:-

"Sri R.S. Dabir for the appellants further contended that the suit must have been brought in the name of two partners at least, as under Order 30, Rule 1 the right is given to "any two or more persons". This objection is equally untenable. These words are merely descriptive of a partnership as introductory to the enacting part of the rule that they are entitled to sue in firm name. According to the rule, the cause title need mention only the firm name and need not give the name of any partner at all. Thus, in Kishanlal v. Firm Nandkishore Kanhaiyalal, ILR (1955) Madh B 345 it was observed:

" The firm was no doubt described as through Kishanlal and Babulal. But this description in the suit and in the appeal was a mere surplusage. If the plaintiff had described the defendant as the firm of Bhagwandas Babulal without mentioning the names of the owners or partners of the firm, the description would have been sufficient having regard to the provisions of Order 30 of the Civil Procedure Code."

On a plain reading of the first rule of Order 30, it is clear that a suit instituted in the firm name is good and it is not necessary for two partners of the firm to be mentioned in the cause title. Under sub-rule (2) of that rule, one of the partners must sign and verify the plaint and this is enough even none of the partners is named in the cause title. All these requirements have been complied with in the instant case. Accordingly, we hold that the suit was maintainable in the firm name and it was not necessary to name two partners in the cause title."

The Allahabad High Court also in the case of Yadav Ram Vs. Laxman Singh Bisht reported in AIR 1978 Allahabad 123, held as follows:-

"The plaintiff, however, filed a suit against Yadav Ram. It was not against the firm. It is true that a firm does not have a legal entity, but O. XXX R. 1, C.P.C. permits that two or more persons claiming as partners may sue or be sued in the name of the firm. Appendix ''A' to the Code shows that in a suit against a firm description of the defendant should be "A, B, a firm carrying on the business sin partnership at .... ". It is not necessary to give the names of the partners or to sue the firm through the partners."

In view of the proposition of law laid down in the above cases, I am of the view that the addition of the words "through one of its partner Ram Kishan" in the cause title of the suit was wholly redundant.

In the affidavit filed in support of the application, it has been clearly stated that the firm Ram Kishan Daya Ram and Company is still running and the deponent of the affidavit Ram Prakash is a partner of the firm. Thus the Appeal cannot abate because of the death of the partners since the suit had been filed by the firm, which is still continuing.

The matter can be examined from another point of view and that is by referring to the provisions of Order XXX Rule 4 of the C.P.C. This provision deals with right of suit on death of partner. In the case of The Upper India Cable Co. and others Vs. Bal Kishan reported in AIR 1984 SC 1381 the Supreme Court examined this provision and held that the death of two of the partners of the firm against which the suit had been filed does not result in abatement of the Appeal if the heirs and legal representatives are not substituted. The relevant paragraph Nos. 8, 11 and 12 of the judgment are quoted below:-

"8. Now the question is where the suit is instituted against the firm and partners are impleaded as proper parties, in the event of death of a partner so sued, would the suit or appeal, as the case may be, abate if heirs and legal representatives of the deceased partner are not substituted within the prescribed period of limitation. There is a twofold answer to this question. Order XXX Rule 4 provides that notwithstanding anything contained in Section 45 of the Indian Contract Act, 1872, where two or more persons are sued in the name of the firm under the enabling provisions of Order XXX and any such persons dies whether before the institution of the suit 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. Secondly death of a proper party would have no impact on the suit more so where on death of a partner the partnership may stand dissolved or heirs do not desire to join the firm. Both these aspects were overlooked by the High Court.

11. The position boils down to this that two of the partners who were appellants along with the firm in the second appeal before the High Court died pending the appeal. It is nobody's case that the heirs and legal representatives of the deceased partners joined the firm or they were entitled to be taken in as partners in place of the deceased partners as partners in the firm. Therefore, the question to be answered is whether on the death of two of the proper or formal parties impleaded in their capacity as partners by the plaintiff along with the firm, in absence of substitution of heirs and legal representatives the appeal abates? The answer is in the negative. Therefore, the question of substituting heirs and legal representatives of the two proper formal parties does not arise and the death has no impact on the proceeding. The appeal cannot abate. Therefore, the High Court was in error in disposing of the appeal as having abated.

12. Accordingly, this appeal succeeds and is allowed. The order of the High Court disposing of the appeal as having abated is quashed and set aside and the matter is remitted to the High Court for disposal of the second appeal on merits according to law. The respondent shall pay the cost of hearing to the appellant."

In view of the proposition of law laid down in the aforesaid decision of the Supreme Court it must be held that this Second Appeal does not abate on the death of the partners of the firm since the suit had been filed by the firm.

Learned counsel for the respondent, however, placed reliance upon a decision of this Court given in the case of M.S. Pearl Vs. M/s Pooran Chandra and others, reported in 1975 AWC, 14 in support of his contention that it was necessary to implead the heirs and legal representatives of the partners who had died during the pendency of the Appeal. In the said case the suit was not filed under Order 30 Rule 1, C.P.C. by the firm and as such the provisions of Order XXX Rule 4, C.P.C. had no applicability. The suit was filed not only by the firm but also by its partners being plaintiff Nos.  2 to 6. The partners had not invoked the provisions of Order XXX Rule 1, C.P.C. The said case is, therefore, of no benefit to the applicant respondent.

Thus the application for dismissing the Second Appeal as having abated, deserves to be rejected.

The third application dated 9.8.2004 has been filed for rejecting the memorandum of Appeal under Order XLI Rule 3 of the C.P.C. on the ground that it is not in accordance with the provisions of Section 100 (3) of the C.P.C. as the memorandum of Appeal does not state the substantial questions of law in the Appeal.

It is true that the memorandum of Appeal does not state any of the substantial questions of law as required under the provisions of Section 100(3) of the C.P.C., but it is also true that the substantial questions of law are required to be stated so as to assist the High Court in formulating the substantial questions of law under the provisions of Section 100(4) of the C.P.C. The amended Section 100 of the C.P.C. came into effect on 1.2.1977 and the Second Appeal was filed on 26.8.1977. The proviso to Section 100 (5) of the C.P.C. permits the Court hearing the Second Appeal to formulate the substantial questions of law if they have not been formulated earlier at the time of the admission of the Appeal. The substantial questions of law were formulated by the Court on 19.7.2004. The question, therefore, is whether the memorandum of Appeal should be rejected under the provisions of Order XLI Rule 3 of the C.P.C. on the ground that the substantial questions of law were not stated by the appellant in the memorandum of Appeal. Order XLI Rule 3 of the C.P.C., as amended by the Allahabad High Court is quoted below:-

"3. Rejection or amendment of memorandum.-

"3.(1) Where the memorandum of appeal is not drawn up in the manner in hereinbefore prescribed, or accompanied by the copies mentioned in rule 1(1), it may be rejected, or where the memorandum of appeal is not drawn up in the manner prescribed,  it may be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amendment then and there."

(2) Where the Court rejects any memorandum, it shall record the reasons for such rejection.

(3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment."

Though under Section 100(3) of the C.P.C. the memorandum of Appeal should state the substantial questions of law involved in the Second Appeal but in my opinion, this provision is only to assist the Court in formulating the substantial questions of law and when the High Court has already formulated the substantial questions of law, it would not be proper to reject the memorandum of Appeal on the ground that the substantial questions of law have not been stated in the memorandum of Appeal. This apart, the learned counsel for the appellant did place before the Court the three substantial questions of law and the same are on the record of the case. In my opinion this is only a procedural requirement for the assistance of the Court and once the Court has formulated them the memorandum of Appeal should not be rejected solely on the ground that they have not been actually stated in the memo of Appeal.

This application is, therefore, liable to be rejected.

In view of the aforesaid discussion, all the three applications are rejected.

Dt/-

Sharma


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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