High Court

Legal Reasoning

(1) ca-2009-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCIVIL APPLICATION NO.2009 OF 2025INCIVIL REVISION APPLICATION NO.105 OF 2022DILIP ANANDA KOLHE AND ANOTHERVERSUSRAJESH SHANTILAL LALWANI AND OTHERS …Mr. S. B. Yawalkar, Advocate for the Applicants.Mr. Girish Rane, Advocate for Respondent No.1.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 17th MARCH, 2025.ORDER:- 1.The present application is filed by Revision Applicants withfollowing prayers:“B.Permit the applicant to carry out amendment asmentioned in para 2 and in title of present civil applicationof respondent no.3 in title of present Revision application”2.Mr. Yawalkar, learned Advocate appearing for the applicantssubmits that on 05.10.2020 original plaintiff no.2/presentrespondent No. 2, Mukesh Shantilal Lalwani expired duringpendency of suit. The steps were taken to bring his legalrepresentatives on record of suit. Since application for bringinglegal representatives in the original suit was not yet decided,present Civil Revision Application has been filed as per title shownin original suit. An application below Exhibit-184 is filed by (2) ca-2009-2025.odtoriginal plaintiff no.1 in pending suit seeking amendment of plaintunder Order VI Rule 17 of the Code of Civil Procedure claimingthat deceased has executed Will and bequeathed his share ofpartnership. 3.Mr. Yawalkar would further submit that infact respondentnos.1 to 3 instituted suit claiming rights of partnership firm oversuit property. The respondent no.3 is partnership firm, who ismade party through partner i.e. respondent no.2-Mukesh ShantilalLalwani. The respondent no.1 is also one of the partner of firm.Therefore, on death of respondent no.2, respondent no.1 canrepresent respondent no.3-Firm being partner. If such amendmentis permitted, proceeding in Civil Revision Application can becontinued as against respondent nos.1 and 3. 4.Per contra, Mr. Rane, learned Advocate appearing forrespondent nos.1 to 3 vehemently opposes application by filingaffidavit-in-reply. He submits that present application ismisconceived in both facts and law, especially when an alternateand more appropriate remedy has not been exhausted. Presentapplication is nothing but attempt to camouflage failure ofapplicants to take suitable steps within reasonable period. Insupport of his contentions, he relies upon observations of SupremeCourt of India in case of Rangubai Jagtap Vs. Sunderabai (3) ca-2009-2025.odtJedhe1 and Union of India and Anr. Vs. Jahangir ByramjiJeejeebhoy2. Parties who have not been reasonably diligent inprosecuting the matter must suffer.5.Having considered submissions advanced, first of allreference to original proceeding from which present Civil RevisionApplication arises would be necessary. The respondent nos.1 to 3instituted Special Civil Suit No.66/2020 seeking declaration thatsale deeds executed in favour of defendant nos.5 to 35 are null andvoid, since those have been executed without any authority. Thesuit is instituted in the name of two partners namely RajeshLalwani and Mukesh Lalwani alongwith partnership firm namelyAnand Shanti Builders and Developers through partner MukeshLalwani. The genesis of claim in suit is based on rights ofpartnership firm in suit property. Essentially, no individual reliefis claimed. Eventually, reasonable inference can be drawn thatplaintiff nos.1 and 2 i.e. partners of firm are not claimingindividual relief, but litigating for joint relief, being partners ofplaintiff no.3-partnership firm. The defendants filed applicationsseeking rejection of plaint on various counts. Those applicationsare rejected. Therefore, individual Civil Revision Applications arefiled assailing such orders before this Court.1AIR 1965 SC 1794.2AIR 2024 SC 1884. (4) ca-2009-2025.odt6.The present Civil Revision Application is filed by some of thedefendants. In this background, this Court, prima facie, holds thatsuit is governed by provisions of Order XXX of Code of CivilProcedure. In essence, in case of death of partner, Order XXX Rule4 would govern proceeding. For ready reference Order XXX Rule 4of Code of Civil Procedure is given hereunder:“4. Rights of suit on death of partner.—(1)Notwithstanding anything contained in section 45 of theIndian Contract Act, 1872 (9 of 1872) where two or morepersons may sue or be sued in the name of a firm under theforegoing provisions and any of such persons dies, whetherbefore the institution or during the pendency of any suit, itshall not be necessary to join the legal representative of thedeceased as a party to the suit. (2) Nothing in sub-rule (1) shall limit or otherwise effect anyright 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 orsurvivors.”7.The Division Bench of this Court in case of ManoharKashinath Vyawahare Vs. Dattatraya son of KrishnaraoPitale & Another3 after considering scheme of Order XXX Rule 4of Code of Civil Procedure observed as under:“10. Purport and object of Rule 4 of Order XXX is to saveprotraction of litigation when a Firm is a party to suit, andsuit can be legitimately continued if the legal heirs ofdeceased partners are not brought before the Court. Thisprovision is an enabling provision and made to avoidprotracting the suit or proceedings. Object of the rule is to32010 2 MhLJ 365. (5) ca-2009-2025.odtdispense with impleadment, so that these steps do not comein the way of expeditious disposal. This provision cannot beused to deny rightful impleadment, when such impleadmentdoes not defeat the purpose of the early disposal of suit or initself can avoid further litigation.”8.Similarly, Supreme Court of India in case of Suresh Kumarand others Vs. Baluram (d) through L.Rs. And another4observed in paragraph no.9 as under:“A fair understanding of reading of the rule would make itclear that where two or more persons may sue or be sued inthe name of a firm under the provisions of other rules ofOrder 30 and any such persons die, during the pendency ofany suit, it shall not be necessary to join the legalrepresentative’s of the deceased as a party to the suit.”9.Similar view is reiterated by Supreme Court of India in caseof Brij Kishore Sharma and Another (supra) and by this Courtin case of Ashish Rajendra Malara (supra).10.Considering the aforesaid exposition of law, in the case of thedeath of a partner in a proceeding instituted in the name of apartnership firm, it is not necessary to bring legal representativesof the deceased partner on record as parties to the suit. However,legal representatives may, on their own volition, apply to be madeparties to the suit.11. Although prayers are opposed on the ground of delay, thisCourt holds that no prejudice would be caused to respondents.Hence, following order:42009 2 MPLJ 198. (6) ca-2009-2025.odtORDERa.Civil Application is allowed in terms of prayer Clauses (A)and (B). (S. G. CHAPALGAONKAR)JUDGEDevendra/March-2025