Bombay High Court
Mrs.Nergish Minoo Pavri vs C/O. M/S.Bashimall Punnalal on 7 September, 2009
Bench: D.B.Bhosale
Dated : 7TH SEPTEMBER, 2009.
Citation: 2010(4) BomCR 475 Bom
Heard learned counsel for the parties.
2. Rule. By consent, rule made returnable forthwith.
3. This petition arises from the order dated 2.2.2005 passed by a Division Bench of the Small Causes Court at Bombay whereby two interim notices being interim notice nos.605 of 2004 and 1368 of 2004, taken out in appeal no.284 of 2002 in R.A.D. Suit No.2637 of 1985, have been disposed of.
4. The petitioners are the heirs and legal representatives of original plaintiff - Minoo Pavri. He had filed a suit being R.A.D.Suit No.2637 of 1985 for declaration that he was entitled to tenancy rights of flat no.9, Puran Niwas, Colaba, Mumbai (for short "the suit flat"). The suit was filed against one Kishanchand P. Gupta, Karta/Manager of Hindu undivided family of Kishanchand P.Gupta (for short "the HUF"). The suit was decreed vide judgment and order dated 30.8.2001. Being aggrieved by the judgment and decree dated 30.8.2001 an appeal being appeal no.284 of 2002 was preferred in the name of Kishanchand P.Gupta, showing him as Karta/Manager of the HUF on 6.4.2002. There is no dispute that before filing of the appeal, Kishanchand P.Gupta had expired on 23.10.2001. As such when the appeal was preferred the Karta of HUF, in whose name the appeal was preferred was not alive. In view thereof the plaintiffs took out interim notice no.605 of 2004 for dismissal of the appeal being not maintainable, while Pramod Gupta, the son of Kishanchand Gupta, took out another interim notice No.1638 of 2004 seeking deletion of Kishanchand's name and allowing him to represent the HUF as its karta/manager.
5. Both the interim notices, taken out by the plaintiffs and the son of Kishanchand, were disposed of by the impugned order holding that in view of the provisions contained in rules 4 and 10 of Order 30 of the Code of Civil Procedure (for short "the Code"), the HUF is to be treated as a firm and the death of the karta/manager would not affect the proceedings. In other words, the division bench of the small causes court held that in view of the provisions of Order 30 it is clear that as a suit/appeal does not abate where any of the partners of a firm dies, either before its institution or during its pendency, a HUF, carrying on business under any name, and sued in such name or style, if its karta dies, the suit/appeal instituted by the HUF also would not abate. The interim notice taken out by the plaintiff was, accordingly, discharged while the notice taken out by the son of Kishanchand was made absolute and he was allowed to be substituted as karta in place of his father.
6. In the present case, the court below has allowed the application filed by the respondent solely relying upon the rules 4 and 10 of Order 30 without understanding the basic difference between a firm and a HUF. The term "firm" as defined by section 4 of the Indian Partnership Act, 1932, means persons who have entered into partnership with one another are called individually "Partners" and collectively "a firm". The firm is not a juristic person. It is only a name of the collections of individuals who are members of the firm. A firm has to have two or more persons claiming to be its partners. While a Hindu undivided family cannot have more than one karta/manager. The learned Judge, in my opinion, has completely overlooked the difference between a firm and a HUF, while allowing the interim notice taken out by the son of Kishanchand Gupta in the appeal which was a nullity.
7. Order 30 deals with the mode of suing firm. The correct way of bringing a suit under rule 1 of order 30 is to bring it in the name of firm as plaintiff without mentioning of any other name and to have the plaint signed and verified by one of its partners. Rule 2 provides that where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names of all persons constituting the firm on whose behalf the suit is instituted. If the plaintiffs fail to comply with such demand the court has power to stay the proceedings. It is against the backdrop of these two provisions, Rule 4 provides that where two or more persons sue or be sued in the name of a firm and any of such persons dies, whether before 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. This is so because even if one partner dies other partner/s continue to represent the firm. In case of a HUF, if karta dies during pendency of a suit/appeal the successor karta will have to come forward, as contemplated by sub-rule (2) of Rule 4, and apply for bringing him on record.
8. Rule 10 of Order 30 provides that any person carrying on business in a name or style other than his own name or Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, insofar as the nature of such case permits, all rules under Order 30 shall apply accordingly. From bare perusal of this provision, it is clear that when a HUF is "to be sued", it may be sued in the name in which it carries business. In the present case the suit was filed against the HUF showing Kishanchand Gupta as its karta/manager and not in other name. In other words, the provision of rule 4(2) will apply only where a Hindu undivided family is carrying on business under any name, and is to be sued it could be sued in the name or style in which it carries its business. It needs to be noted that a HUF cannot appear as a HUF, and the manager/karta should, therefore, appear in his own name, though all subsequent proceedings could be continued in the name of HUF. A HUF need to be represented by its karta/manager in a suit/appeal and in the event of his death a successor karta/manager will have to represent the HUF and continue the proceedings. But, after disposal of a suit and at the time of filing an appeal if karta, who was representing the HUF in the suit dies, the successor karta will have to file the appeal. The appeal, in such eventuality cannot be filed in the name of HUF, showing the deceased karta/manager as its karta/manager. Such appeal would be a nullity.
9. In the present case, there is no dispute that the appeal was preferred in the name of Kishanchand Gupta, showing him as karta/manager of the HUF. It is not clear as to who signed the Vakalatnama in favour of the pleader. The pleader, on the basis thereof preferred the appeal on 6.4.2002, i.e. about six months after the death of Kishanchand. Kishanchand Gupta, the karta/manager of the HUF, being dead, the advocate who preferred the appeal had no authority to prefer any appeal on the basis of the vakalatnama, signed, either by Kishanchand, while he was alive, or by his constituted attorney on the basis of a power of attorney. The Vakalatnama and the power of attorney, if any, on the death of Kishanchand, had come to end. Hence, the appeal itself was a nullity.
It is true that a court has power to pass order under Rule 10 Order 1 of the Code for substitution of a legal representative of the deceased litigant. But an effective order under Order 1 Rule 10 can only be made, where there is an appeal before the court. For instance where the appeal is by more than one appellant and if one out of them is already dead. Similarly powers under order 1 Rule 10 can also be excersied if the appeal is filed against a dead person (see State of Kerala Vs. Shridevi (2000) 9 SCC 168). But the things would be different if the appeal is filed in the name of a sole/deceased appellant.
Such appeal would be a nullity. If the appeal is a nullity, such as when it is presented by the advocate on behalf of the sole appellant who is already dead, then any order made in that appeal is equally a nullity. The appeal being a nullity, the order for substitution of a legal representative in place of the deceased appellant cannot be made. The heirs and legal representatives of the appellant in such an eventuality are not remedyless. They can appeal, being the heirs and legal representatives of the deceased appellant. This being so, the only option that was open to the court, in the present case, was to allow the respondent, the son of Kishanchand, to file fresh appeal with an application for condonation of delay in filing the appeal. It is against this backdrop, the learned counsel for the parties have agreed for the following order:
The impugned order dated 2.2.2005 is set aside. It is open to the respondent to file a fresh appeal with an application for condonation of delay caused in filing the appeal.
If the appeal and the applications, as aforementioned, are filed by the respondent within six weeks from today, the concerned court shall hear and dispose them of on merits in accordance with the law. While dealing with the application for condonation of delay the court below shall take into consideration the time consumed in prosecuting the appeal filed in the name of deceased karta/manager of the HUF. If the application filed by the respondent is allowed the court below shall proceed to hear the appeal on merits in accordance with the law. This order, however, shall not take away the right of the petitioners to oppose the application for condoning the delay. All contentions of the parties on merits are kept open. The Rule is made absolute. No costs.
(D.B.Bhosale, J.)
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