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PETITIONER: BRIJ KISHORE SHARMA & ANR.

       Vs.

RESPONDENT: M/S. RAM SINGH & SONS & ORS.

DATE OF JUDGMENT:       01/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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   consideration  is  that  the respondent-plaintiff  being  a  partnership  firm,  has  not impleaded all the partners co-nominees as plaintiff-party to the suit. Resultantly, the suit is not maintainable. Pending suit, one of the partners died and the legal representatives were not  brought on  record. The  question, therefore, was: whether the  suit is  liable to be dismissed for non-joinder of the necessary and proper parties? The trail Court as well as the  High Court  recorded as  a fact that the respondent- firm is  a registered partnership firm and, therefore, under Section 69 of the partnership Act, the suit is maintainable. The trail  Court dismissed the suit on the ground that since one  of  the  partners  died  pending  suit  and  the  legal representatives were  not brought  on record,  suit was  for non-joinder of necessary and proper parties. The controversy is covered  by the  provisions of order XXX of the CPC which gives special  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:      "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  died, whether  before

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    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) 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."      Sub-rule (2)  is not  relevant for  the purpose of this case. By  operation of  sub-rule 4 of order XXX, despite the embargo under  Section 45  of the Indian Contract Act, it is not necessary that the legal representatives of the deceased partner  who   dies  whether   before  institution   of  the proceedings or  during  the  pendency  of  the  proceedings, should   be    substituted    as    a    co-nominee    party plaintiff/defendant to the suit. The trial Court, therefore, was not  correct in  holding that  the suit  is bad for non- joinder of  necessary party. The High Court was right in the conclusion that the suit is maintainable.      The next plea raised was that the renewal of promissory note executed  by the  appellants.  The  ground  in  support thereof  was  that  one  of  the  coparceners  who  was  the signatory  to   the  promissory   note   was   hospitalised. Consequently, he could not have executed the promissory note on the even date. The High Court has gone into depth of this aspect by  consideration of  the entire  evidence on record, mostly documentary  evidence. Since  it  is  a  question  of appreciation of  evidence and  the High  Court, as the final court of  fact, on  appreciation  thereon,  the  appellants- defendants are  liable for  the payment  of the  amount  due thereunder. This  being the  finding of fact, we do not find any error of law in the finding recorded by the High Court.      The appeal is accordingly dismissed. No costs.