Mohd. Naseem And Ors. vs Mohd. Rafiq And Anr.
2017 Latest Caselaw 2996 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 338-44/2006

%                                                         4th July, 2017

MOHD. NASEEM AND ORS.                                    ..... Appellants
                 Through:                Mr. Rakesh Saini, Advocate.
                          versus

MOHD. RAFIQ AND ANR.                                  ..... Respondents

                 Through:                Mr. M. Tarique Siddiqui, Mr.
                                         Harsh Priya, Ms. Tanveee
                                         Ahmed and Ms. Reetika Gupta,
                                         Advocates.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This appeal is filed against the impugned order of the trial

court dated 17.10.2006 whereby the trial court has dismissed the suit as

abated by dismissing the applications for bringing on record the legal

heirs of the deceased plaintiff no.2 by also additionally reasoning that

the plaintiff no.4 had also expired long back but no application was

filed for bringing on record the legal heirs of plaintiff no.4. The

defendant no.2 had also died and application was filed to bring on

record his legal heirs but this application was held need not be decided

as it was held that the suit as a whole had abated. Though it is not so

mentioned, this appeal will be under Order XLIII (1) (k) CPC.

2. The facts of the case are that the subject suit was filed for

dissolution of partnership and rendition of accounts. Partnership was

between the defendant no.1 in the suit Mohd. Rafiq and deceased Smt.

Chaman Ara Begum. Smt. Chaman Ara Begum died issue less.

However she died leaving behind her husband and who was sued as

defendant no.2 in the suit. Plaintiffs in the suit are the brothers and

sisters of Smt. Chaman Ara Begum as it is stated that under Muslim

law they would partially inherit the estate of late Smt. Chaman Ara

Begum. Therefore, it is seen that 7 plaintiffs in the suit are the brothers

and sisters of the deceased partner Smt. Chaman Ara Begum and the

defendant no.2 in the suit was the husband of late Smt. Chaman Ara

Begum. Defendant no.1 Mohd. Rafiq in the suit was the other partner

in the partnership firm. The partnership between late Smt. Chaman

Ara Begum and the defendant no.1 Mohd. Rafiq was in the profit

sharing ratio of 25:75%.

3. Before the trial court there were two sets of applications

which were filed on account of deaths of the plaintiff no.2 Mohd.

Yunus and defendant no.2 Mohd. Sadiq. As stated above the

application with respect to bringing on record the legal heirs of the

deceased defendant no.2 Mohd. Sadiq was not decided by observing

that since the suit had abated as a whole hence the application for

bringing on record the legal heirs of the deceased defendant no.2 along

with the connected application for condonation of delay need not be

decided. By the impugned order the suit was dismissed as abated by

refusing to condone the delay of 2 years in bringing on record the legal

heirs of the deceased plaintiff no.2 Mohd. Yunus.

4. In law, the failure to bring on record the legal heirs of one

of the plaintiffs may or may not result in abatement of a suit as a

whole. Suit as a whole can abate only if the cause of action is joint and

indivisible. As already stated above the 7 plaintiffs in the suit were the

7 brothers and sisters of the deceased partner Smt. Chaman Ara Begum

and all of whom had independent rights in the estate of late Smt.

Chaman Ara Begum and if the legal heirs and one of the deceased

plaintiff are not brought on record then at best the right of such a

plaintiff would stand defeated but surely it cannot defeat the rights of

other plaintiffs who had independent rights to the estate of the partner

late Smt. Chaman Ara Begum. In a suit such as the present one which

is filed by the legal heirs of the deceased partner Smt. Chaman Ara

Begum seeking the reliefs of dissolution of partnership and rendition of

accounts the cause of action is not joint and indivisible that on account

of death of one of the legal heirs and not bringing on record the legal

heirs of such a person by refusing to condone the delay that rights of

other legal heirs of the deceased partner, and who were other plaintiffs

in the suit, can be defeated.

5. In any case, the fact of the matter is that delay in bringing

on record the legal heirs of deceased plaintiff no.2 Mohd. Yunus was

only about 2 years. It was stated in the application for condonation of

delay that the remaining plaintiffs were under the bonafide impression

that the suit would continue in spite of the death of the plaintiff no.2

and therefore having a wrong belief as to law in the facts of the present

case in my opinion gives sufficient cause for condoning the delay of 2

years inasmuch as the present is not a case where the sole contesting

defendant being the defendant no.1 would be so gravely prejudiced

because of the delay of 2 years. Normally prejudice is to the plaintiff

in the suit and the delay of 2 years in conduct of the suit will not

irreparably prejudice the contesting defendant no.1 being the other

partner of the partnership firm namely Mohd. Rafiq for ordering

abatement of the suit even qua the legal heirs of the deceased plaintiff

no. 2. As held by the Supreme Court in the judgment in the case of N.

Balakrishnan Vs. M. Krishnamurthy AIR 1998 SC 3222 that unless

there is deliberate malafides in causing delay in not bringing on record

the legal heirs, ordinarily under Section 5 of the Limitation Act, 1963

delay should be condoned. Supreme Court has also observed that once

there is delay then there is bound to be some negligence but unless

such negligence is gross negligence Courts should not take a too

technical view and refuse to condone the delay. Applying the ratio in

the case of N. Balakrishnan (supra) the present is a fit case for

condoning the delay to bring on record the legal heirs of deceased

plaintiff no.2 and it is ordered accordingly.

6. At this stage, counsel for the surviving plaintiffs states

that since the legal heirs of the plaintiff no.2 are not interested in

pursuing the suit they be deleted from array of plaintiffs. This prayer

of the appellants/plaintiffs is acceded to inasmuch as the cause of

action in a suit for dissolution of partnership and rendition of accounts

such as the present, is a severable cause of action, and rights of other

plaintiffs would survive even in the absence of one of the legal heirs of

deceased plaintiff no.2 not continuing with the suit with the only

consequence that the remaining plaintiffs would get only their share

out of the partnership assets. Also by deleting legal heirs of deceased

plaintiff no.2 there is no prejudice and in fact benefit to the contesting

defendant no.1 because this will result in the defendant no.1 being

accountable for a lesser share than otherwise he would have been

accountable together to all the plaintiffs and legal heirs of the deceased

partner Smt. Chaman Ara Begum.

7. I may note that the trial court has dismissed the suit by

observing that the plaintiff no.4 Mohd. Yusuf had died as per the

statement of counsel for the defendant no.1 and the legal heirs of

plaintiff no.4 were not brought on record. It is in my opinion that

courts should not only on an oral statement of the counsel for a

defendant dismiss the suit without giving opportunity to the surviving

plaintiffs to file applications to bring on record the legal heirs of the

deceased party and for condonation of delay by giving due reasons.

Therefore, dismissing the suit as abated by simply recording the

statement of the counsel for the defendant of the death of the party and

consequently holding of abatement of the suit is violation of the

prescribed procedure or natural justice and resultantly the court below

has committed an illegality in dismissing the suit as abated on account

of death of plaintiff no.4.

8. At this stage, counsel for the appellants states that even

the legal heirs of plaintiff no.4 can be deleted from the array of parties,

and therefore in accordance with the observations already made above

with respect to deletion of legal heirs of plaintiff no.2, the name of the

deceased plaintiff no.4 will be deleted from the array of the plaintiffs,

and which is in fact for the benefit of the contesting defendant no.1 as

he will not be accountable for the share which if found to be payable to

the plaintiff no.4.

9. It may be noted that in the present case the plaintiff no.5

expired during the pendency of this appeal. Plaintiff no.5 Mohd. Naqui

died on 25.6.2008 in Pakistan. Applications being CM No.

12625/2011 has been filed to bring on record the plaintiff no.5 under

Order XXII Rule 3 CPC and CM No.12626/2011 has been filed for

condonation of delay. These applications are pending and have also to

be decided by the present judgment. However, counsel for the

appellants once again states that plaintiff no.5 be deleted from the array

of the plaintiffs as they are not interested in pursuing the suit and

consequently the name of the deceased plaintiff no.5 will also be

deleted from the array of the parties and as already stated above this

will only benefit the contesting defendant no.1 and will not in any

manner prejudice the contesting defendant no.1.

10. I may note that before the trial court applications were

filed to bring on record the legal heirs of the deceased defendant no.2

and who was the husband of Smt. Chaman Ara Begum. Trial court has

not decided these applications. However, for the reasons as already

given above legal heirs of defendant no.2 Mohd. Sadiq are allowed and

I.A No. 3988/2002 is allowed by bringing on record the legal heirs of

deceased defendant no.2. Legal heirs of the defendant no.2 were sued

as respondents in the present appeal and were served but they have not

contested the appeal and were proceeded ex parte. Accordingly, the

legal heirs of the deceased defendant no.2 will be brought on record in

terms of I.A. No. 3988/2002 and when amended memo of parties will

be filed showing four plaintiffs then such memo of parties will also

show the legal heirs of the deceased defendant no.2 Mohd. Sadiq as

other defendants in the suit but they would stand proceeded ex parte

and trial court need not serve any fresh notices to the legal heirs of the

deceased defendant no.2. I may note that Supreme Court in the

judgment in the case of Rangubai Kom Shankar Jagtap vs.

Sunderabai Bhratar Sakharam Jedhe and Ors. AIR 1965 SC 1794

has held that if legal heirs of a party defendant are brought on record in

an appeal such bringing on record will enure for the benefit in the suit

also even if they have not been brought on record in the suit.

11. Appeal is accordingly allowed and now the remaining

appellants/plaintiffs will file amended memo of parties before the trial

court showing only the remaining four plaintiffs as the plaintiffs in the

suit.

12. I may note that the subject suit for dissolution of

partnership and rendition of accounts was filed on 12.7.1991 i.e around

27 years back. It is only on account of the unfortunate contest by the

defendant no.1 in the suit for opposing bringing on record the legal

heirs, and who is the respondent no.1 in the present appeal, that the

same has resulted in that today in the year 2017 the stage of the suit is

of bringing on record the legal heirs of the deceased some plaintiffs

and now of deleting them as parties. The suit of the plaintiffs therefore

has been unnecessarily delayed from 2000 when the applications were

filed to bring on record the legal heirs of deceased plaintiff no.2.

Accordingly, this appeal is allowed by directing payment of costs of

Rs.25,000/- by the respondent no.1/defendant no.1 to the remaining

plaintiffs and who will pursue the suit, and which costs shall be paid

before the trial court to the remaining plaintiffs. Also, in accordance

with the present judgment plaintiff nos. 2, 4 and 5 will stand deleted

from the array of the plaintiffs i.e out of the original 7 plaintiffs now

only 4 plaintiffs would remain and the legal heirs of deceased

defendant no. 2 will be substituted for deceased defendant no.2.

JULY 04, 2017/ib                             VALMIKI J. MEHTA, J