Delhi High Court
Shakuntla Devi vs Jammu And Kashmir Bank Ltd. on 11 July, 1989
Author: P Bahri
Bench: P Bahri
JUDGMENT
P.K. Bahri, J.
1. Since a short question is involved in the revision petition, I have heard learned counsel for the parties and proceed to decide the civil revision petition itself.
2. The facts of the case in brief are-that respondent No. 1, Jammu and Kashmir Bank Ltd. has brought a civil suit for recovery of Rs.22,812.80 against defendant No. 1, a partnership firm, comprising two partners, namely, Prem Nath Chopra , defendant No. 2, and Suresh Chandrs Jain, defendant No. 3. Smt. Kabuli Devi, defendant No. 4, was joined as a surety.
3. During the pendency of the suit, defendant No. 2, Prem Nath Chopra, died on August 27, 1983. No application was moved by the plaintiff for bringing on record the legal representatives of the said defendant. Order 30, sub-rule (4) of the Code of Civil Procedure permits the plaintiff not to bring on record the legal representatives of the deceased/defendant No. 2, and the suit can proceed against the firm and the other partner joined as defendant No. 3.
4. Defendant No. 3, however, moved an application on March 27, 1985, for bringing on record the legal representatives of the deceased/defendant No. 2. The application was opposed by the legal heirs of defendant No. 2 on the short ground that cause of action in respect of this suit survives to the plaintiff only and not to defendant No. 3 and that it is the plaintiff only who could bring the application for bringing on record the legal representatives of deceased/defendant No. 2.
5. The learned lower court was of the opinion that the application for bringing on record the legal representatives could be moved by defendant No. 3, i.e., co-defendant also and that it is not necessary that the cause of action should survive to the co-defendant.
6. A bare reading of Order 22, rule 4(1) of the Code of Civil Procedure makes it clear that before an application is moved for bringing on record the legal representatives of the deceased defendant, it must be shown that the cause of action, that is the right to sue, survives to the applicant. The cause of action cannot be considered to have survived to defendant No. 3 by any stretch of reason. If there is any dispute between the co-partners with regard to the affairs of the partnership, that can be set right by bringing a separate suit. The cause of action must arise from the averments made in the plaint. The facts mentioned in the plaint do not show that there is any cause of action in favor of defendant No. 3 so that he can be held entitled to move the application under Order 22, rule 4 of the Code of Civil Procedure for bringing on record the legal representatives of defendant No. 2. If there is any dispute between the legal representatives of defendant No. 2 and defendant No. 3 inter se with regard to the affairs of the partnership, defendant No. 3 is well advised to have his remedies by filing a separate suit. I do not mean to say that if there is any inter se dispute between the partners vis-a-vis the cause of action with regard to the plaint, that cannot be settled in the same suit but such is not the case here. It was purely a civil suit for recovery of money against the partnership firm and thus it is obvious that the cause of action in the suit survives only to the plaintiffs against the legal representatives of defendant No. 3 for bringing on record the legal representatives of defendant No. 2.
7. For the aforesaid reason, I allow this revision petition and set aside the impugned order dated April 2, 1987. The application moved by defendant No. 3 for bringing on record the legal representatives of defendant No. 2 is dismissed. Parties are, however, left to bear their own costs.
