Madan Gopal Hargopal vs Padam Chand Vaish
2004 Latest Caselaw 978 Del

JUDGMENT

R.S. Sodhi, J.

1. This petition is directed against the judgment and order dated 7.11.2003 of the Rent Control Tribunal, Delhi in RCT No.23/2002 whereby the learned Tribunal dismissed the appeal as having abated.

2. The facts of the case as noted by the Tribunal are as under:-

"The appellant is a firm "M/s. Madan Gopal Har Gopal". The respondent Sh.Padam Chand Vaish had filed an eviction case against the appellant seeking its eviction U/s 14(1)(a) (b), and (j) of Delhi Rent Control Act, 1958. However, the ld. Trial court decreed the respondent's eviction suit against the appellant only U/s. 14(1)(a) (b) and (j) of Delhi Rent Control Act vide its impugned eviction order dated 3.8.2002.

As per respondent's case in the eviction petition, the appellant was sued stating it to be a partnership firm but in the written statement filed on behalf of appellant, the plea was taken in para 3 of the preliminary objections that the appellant was a sole proprietor ship firm of M/s Har Gopal Berry. The apepllant contested the eviction proceedings throughout in his capacity as a proprietor of the appellant. After losing in the trial court, the appellant filed this appeal and challenged the eviction order against it dated 3.8.2002.

As per respondent's case, at the time the suit premises was let out to the appellant, it was a partnership firm consisting of three partners namely Madan Gopal, Har Gopal and Brij Gopal. All these three partners died one after the other. Sh.Madan Gopal expired on 29.9.82 much before the filing of eviction case by the respondent. The other two partners namely Har Gopal and Brij Gopal expired during the pendency of this appeal on 20.10.2002 and 22.1.2003 respectively. After the death of Brij Gopal on 22.1.2003, an application under Order 23 rule 3 CPC was filed on behalf of legal heirs of Brij Gopal as well as Har Gopal on 17.4.2003. On 21.7.2003, the legal heirs of Brij Gopal Berry appeared before the court in person and stated that they never authorised anybody to move an application for their substitution in this appeal nor they were interested in challenging the impugned eviction order against the appellant."

3. It is contended by counsel for the petitioner that the appeal could not have been dismissed as having abated since Brij Gopal one of the partners of M/s Madan Gopal Har Gopal died on 22.1.2003 and an application had been moved by the legal representatives of Har Gopal in time to be substituted. It is further contended by counsel that the firm, M/s Madan Gopal Har Gopal was never dissolved and even though one of the partners Madan Gopal died on 25.09.1982 the firm continued to be represented by Har Gopal who died on 29.10.2002 during pendency of the appeal before the tribunal and on the death of Har Gopal the firm continued to exist till Brij Gopal died on 22.1.2003. In this context he submits that the legal representatives of Har Gopal were well within their rights to be substituted in place of Har Gopal on the death of Brij Gopal on 22.1.2003. The application for substitution ought to have been allowed and the appeal proceeded with on merits.

4. On the other hand, it is contended by counsel for the respondent that on the death of Madan Gopal the firm no longer existed which was in the special knowledge of the other two partners, namely, Har Gopal and Brij Gopal. It was the case of Har Gopal that he had become a tenant in his own right and the firm M/s Madan Gopal Har Gopal was now a proprietorship concern with Har Gopal as the sole properietor. In which event, counsel submits death of Brij Gopal would be irrelevant to compute limitation. Har Gopal having died on 29.10.2002 the application for substitution dated 17.4.2003 was barred by limitation and the appeal abated.

5. Heard counsel for the parties and have carefully gone through the material on record as also the judgment under challenge. It appears to me that after the death of Madan Gopal, Har Gopal claimed himself to be the sole proprietor of M/s Madan Gopal Har Gopal which was not contested by Brij Gopal. This arrangement continued till Har Gopal died on 29.10.2002. Even at this time Brij Gopal did not assert the rights of M/s Madan Gopal Har Gopal the so-called partnership concern. On the contrary a categoric statement was made by the legal representatives of Brij Gopal that they had no right, title or interest in the premises in question and, therefore, it cannot be said that M/s Madan Gopal Har Gopal firm continued to be a partnership firm in which Brij Gopal had stakes.

6. It is no doubt true that had the firm M/s Madan Gopal Har Gopal existed then the legal representatives of Brij Gopal on his death on 22.1.2003 could have moved an application to be brought on record and the court would have suo motu brought the legal representatives of Madan Gopal and Har Gopal on record to enable it to adjudicate the matter.

7. In the present case, since Har Gopal became the sole proprietor of M/s Madan Gopal Har Gopal, which fact was not challenged by Brij Gopal nor the legal representatives of Madan Gopal, it has rightly been held that the partnership firm M/s Madan Gopal Har Gopal had ceased to exist and that Har Gopal became tenant of the premises in question in his capacity as proprietor of M/s Madan Gopal Har Gopal.

8. Har Gopal having died on 29.10.2002, an application for substitution brought by the legal representatives of Har Gopal on 17.4.2003, was far beyond time and the appeal abated 90 days of the death of Har Gopal.

9. Reliance is placed by counsel for the petitioner on Jagatjit Ind.Corp. Vs. Union of India 1980 Rajdhani Law Reporter 696. I have carefully gone through the same but find that the same is not applicable to the facts of the present case, inasmuch as in that judgment the firm continued to exist and the legal representatives of the last deceased partners were brought on record in time and, therefore, the legal representatives of the other partners had the right to be substituted in place of the deceased.

10. In the case in hand the situation is quite different. The firm M/s Madan Gopal Har Gopal ceased to exist and in its place a proprietorship concern M/s Madan Gopal Har Gopal came in existence with Har Gopal claiming to be its sole proprietor. This was not objected to by Brij Gopal or the legal representatives of Madan Gopal. The matter proceeded before the Controller on the basis that Har Gopal was the sole proprietor of M/s Madan Gopal Har Gopal. Therefore, on the death of Har Gopal it was necessary for the legal representatives of Har Gopal to have been substituted within 90 days.

11. In view of what has been stated above, I find that the judgment under challenge suffers from no infirmity.

12. C.M(M) 1004/2003 & C.M. 2161/2003 are dismissed.