(1.) THE plaintiffs-petitioners are the landlords who had filed a suit for eviction from a shop situated in a building known as "vishwash (Amawan House)" situated in North Krishnapuri in the town of Patna.

(2.) THE suit for eviction has been filed on the ground of personal necessity under Section 11 (1) (C) of the Bihar Building (Lease, rent and Eviction) Control Act, 1982 (hereinafter referred to as the 'act') and hence the suit is being filed under Section 14 of the Act.

(3.) BY the impugned order dated 20-1-2009 the Munsif, III. Patna has allowed the opposite party No. 4 to be added as party in place of his mother Smt. Rajyashree Sinha who died during the pendency of the suit along with the partners of M/s. Priti Garments having the business in the name and style of M/s. "bachpan His and Her's" who have been impleaded as defendants 2 to 4.

(4.) THE eviction suit was filed in the year 2001. It would be important to state a few facts with respect to title eviction suit No. 34 of 2001. The defendants appeared in this suit and took permission under Section 14 (4) of the Act for grant of leave to contest. The leave was granted and thereafter the defendant adopted the grounds taken in the special leave application as her written statement. The rest of the defendants who are partners of the said firm described above did not appear, nor did they choose to contest the same and hence the suit proceeded ex-parte against them. The evidence of the plaintiffs-petitioners commenced by examination of P. W. 1 on 19-11-2004 and the plaintiffs evidence concluded on 17-4-2007. The evidence on behalf of the defendants began on 18-5-2007. 13 witnesses were examined. The last witness was examined on behalf of the defendants on 3-6-2008. The defendant No. 4 unfortunately died on 19-6-2008 and she could not examine herself as a witness.

(5.) ON 20-10-2008 it was brought to the notice of the Court that defendant No. 4 has died and a petition was filed on 15-9-2008 in pursuance of direction given by the court below on 29-8-2008. The Court while considering whether the substitution petition should be allowed by the plaintiffs held that since the tenancy is in favour of partnership firm, the provisions of Order XXX Rule 4 of the Code of Civil Procedure (hereinafter referred to as the 'code') will apply in case of death of the partnership firm. The Munsif also held that the legal heirs of the deceased partner may approach the Court to be added as partner and finally ordered that the plaintiffs are directed to file any document to show that the defendant No. 1 is a partnership firm and defendant Nos. 2, 3 and 4 are its partners and after the petition was filed the order dated 20-10-2008 was passed holding therein that there is a prima facie case that the defendant No. 4 was the partner of defendant No. 1 and as such it would not be necessary to join the legal representatives of the deceased as party to the suit.

(6.) ON 17-11-2008 one Amitesh Anand filed a petition stating that he is the legal heir of defendant No. 4 and that he should be impleaded as party in the eviction suit. An objection was, raised on behalf of the plaintiffs who stated that Amitesh Anand is not a necessary party in the suit as he is not a partner in the firm and no substitution is necessary under Order XXX Rule 4 (2) (a) of the Code. By this impugned order the Court allowed Amitesh Anand to be added as party in the interest of justice for proper adjudication of the case. This order has been challenged in this Court.

(7.) THE plaintiffs-petitioners have submitted that the son of the defendant No. 4 is neither a partner in the firm nor does he have any interest in the firm and as such he is not required to be substituted in place of defendant No. 4. It is further submitted that the Court below has not appreciated the provisions of Order XXX Rule 4 (2){a) of the Code while passing the order. Order XXX rule 4 reads as follows :-

4. Right of suit on death of partner.- (1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872 (9 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 person 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.

(8.) RULE 4 envisages that where two or more persons sued or are sued in the name of a firm under the foregoing provisions i. e. provisions of Order XXX of the Code and if such person dies whether before institution of the suit or during the pendency of the suit it shall not be necessary to join the legal heir as a party to the suit. This Rule provides that in a suit in the name of a firm, it is not necessary to join the legal representatives of the deceased partner the decree against the firm binds only the interest of the deceased partner in the partnership as such, it is not intended that the suit include the representative of the deceased partner.

(9.) IN order to support the contention that the legal representative of the deceased partner are not to be substituted in the suit instituted by or against the firm or the partners of the firm the petitioners have relied on the decisions which are The Upper India cable Co. and Ors. v. Bal Kishan (AIR 1984 sc 1381), Laxami Narayan Rice Mills and Anr. v. The State Bank of India, Deoghar (AIR 1996 Pat. 70), Anokhe Lal v. Radhamohan bansal and Ors. (AIR 1997 SC 257).

(10.) THE scope of Order XXX Rule 4 has been discussed in the case of The Upper india Cable Co. and Others' case. In this case the firm was impleaded as a tenant and the partners were impleaded merely as proper parties against whom no reliefs of any kind was prayed for in their personal capacity. The High Court dismissed the second appeal on the ground that the heirs of the deceased partner were not added as party. The supreme Court held that the heirs and legal representatives of the deceased partners had not joined the firm and thus were not entitled to be taken as partners in place of the deceased partners of the firm. Therefore, the question of substituting heirs and legal representatives of the two formal parties does not arise and the death has no impact on the proceeding and the High Court had erred in disposing of the appeal as having abated.

(11.) IN the case of Laxami Narayan Rice mills and another's case (AIR 1996 Pat 70)the facts were that a mortgage suit was filed by the State Bank of India against Laxami narayan Rice Mills, a partnership firm and its partners. During the pendency of the suit one of the partners died. The legal representative of the deceased partner appeared after substituted service and filed an application under Order XXII Rule 4 read with section 151 of the Code of Civil Procedure stating that the suit as a whole had abated on account of non substitution of heirs of deceased defendant No. 3. A plea was taken that since the firm was not a registered firm the provisions of Order XXX Rule 4 of the code would not apply and the suit would not abate. A civil revision was filed before the Patna High Court in which the counsel appearing on behalf of the petitioners took a stand that Rule 4 of Order XXX of the Code is not attracted to the facts of the case, as the firm was an unregistered firm relying on the decision of the Allahabad High Court in M. S. Pearl Sound Engineer v. M/s Pooran chand and Others (AIR 1975 Allahabad 207). The Court has discussed the Allahabad case vis a vis the case under law laid down in upper India Cable Company (AIR 1984 SC 1381) (supra) and held that in view of the fact that the heirs and legal representatives of the deceased partner has not taken a plea that he is inducted as a partner of the firm it cannot be said that he/she should be added as a party in the suit. Thus the Patna high Court has distinguished the judgment reported in A. I. R. 1975 Allahabad 207 and relied on the Supreme Court judgment as well as the judgment of the full bench reported in The Upper India Cable Co. and Ors. v. Bal Kishan (referred to above). Similar is the decision of the Supreme Court in the case of Anokhe Lal v. Radhamohan Bansal and Others (AIR 1997 SC 257) wherein the supreme Court has held that paragraph 8 sub-rule I or Rule IV in Order XXX of the code provides that it is not mandatory to join the legal representative of a deceased partner as party in the suit. What sub-Rule (2) says in other words is that Rule 1 is not a hindrance of any legal 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 operates as an exception to sub-rule (1). At any rate, Rule 4 (2) of Order XXX cannot come into operation in a situation where order I Rule 10 of the Code cannot be invoked.

(12.) IN the present case it is nobody's contention/case that the heir or legal representative of the defendant No. 4 joined as a partner in the firm and as such he would have legal interest in the farm, until he could have shown that after the death of defendant no. 3 his name was included in the partnership firm.

(13.) LEARNED counsel appearing on behalf of the opposite parties on the other hand submits that Order XXX is an enabling provision which allows two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm of which such persons were partners at the time when the cause of action accrued. It also provides that any party in a case may ask the Court for statement of the names and addresses of the persons who were at the time of accruing of the cause of action partners in such firm, to be furnished and verify in such manner as the Court may direct.

(14.) THE opposite parties have relied on purushottam Umed Bhai and Company v. M/s. Mani Lal and Sons (AIR 1961 SC 325) to argue that the legal representative and heir have a right to be substituted as heirs. In this case the Supreme Court has explained the necessity of the introduction of Order xxx in the Code. Earlier suits were instituted particularly in the Muffasil Courts in the name of the firms or were instituted against a firm in the firm name and no objection was generally taken. This practice was largely based on the presumption that the suit concerned was either by the partners of the firm or against all the partners of the firm. If however, an objection was to be taken that the suit in the name of a firm is not maintainable because the firm has no legal entity the Court would have to decide whether the suit had been instituted by non existing person. If so the suit was not maintainable. Therefore, it became necessary to introduce Order XXX in the Code. The law laid down in Purushottam's case does not help the opposite party in substantiating the stand that there is a necessity of substituting the heir and legal representative of defendant No. 4 and the suit would otherwise abate because of such non substitution.

(15.) LEARNED counsel for the opposite parties argues that the provisions of Order xxx would not apply in the facts of this case as according to the counsel appearing on behalf of the opposite parties the pleadings do not disclose that the suit was filed against a firm or its partners. From perusal of the plaint which is annexure-1 to the petition it appears that defendant No. 5 is M/s. Priti garments a partnership firm being represented by Rajyashree Sinha. Defendant No. 2 is Smt. Jayshri Chandra. Defendant No. 3 is Mrs. Nawalika Sharma and defendant no. 4 is Mrs. Rajyashree Sinha (she died during the pendency of this suit). Paragraphs 1,2,3 and 5 would indicate that the defendant Nos. 2 to 4 had jointly approached and had represented that they established a firm.

(16.) IN view of the pleadings made this court at this stage cannot doubt that the respondent Nos. 3 and 4 are the partners of m/s. Priti Garments and that is also the finding of the Trial Court on perusal of the documents.

(17.) IN view of the discussio

ns aforesaid and on the basis of the law laid down by the supreme Court the order dated 20-1-2009 substituting Amitesh Anand as defendant is set aside. The civil revision is allowed. I also direct that the suit should be expeditiously disposed of preferably within a period of three months since it has been filed in 2001 on the ground of personal necessity. C. R. No. 1747 of 2006 (18.) THIS civil revision has been filed by defendant No. 3 who died during the pendency of the civil revision challenging the order by which the Court has rejected the application of defendant No. 3 making a prayer to reject the lease deed filed on behalf of the plaintiff in evidence. The case of the plaintiff opposite party is that there is no provision under the Code to take out a document which has already been filed and exhibited in the suit. The Court in my opinion has rightly rejected the defendant No. 3's application. (19.) IN the said civil revision I. A. No. 5739 of 2008 has been filed making a prayer to expunge the name of petitioner No. 1 (defendant No. 3)Mrs. Rajyashree Sinha who died on 9-6-2008 and substitute her husband and son as legal heirs and representatives. (20.) THE I. A. Application filed in civil revision 1747 of 2006 is rejected for the reasons mentioned in civil revision No. 337 of 2009. The civil revision is thus dismissed. Revision dismissed.