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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.