1996 INSC 1410
                                        Brij Kishore Sharma and Another

                                                           Vs

                                          Ram Singh & Sons and Others

                                          Civil Appeal No. 1562 of 1980

                                      (K. Ramaswamy, G. B. Pattanaik JJ)

                                                      01.10.1996

                                                        ORDER

1. This appeal by special leave arises from the judgment of the Division Bench of the Patna High
Court made on 2-5-1980 in appeal from Original Decree No. 306 of 1969.

2. The respondents filed a suit to recover a sum of Rs 58,880 on the foot of a promissory note dated
1-4-1960 to recover the principal sum of Rs 46,380 and interest which accrued thereon. The trial
court dismissed the suit. But on appeal, the High Court allowed the appeal and decreed the suit.
Thus, this appeal by special leave.

3. Two points were raised in the written statement and argued by the respondents. The first point
that was addressed and pressed for consideration is that the respondent-plaintiff being a partnership
firm, has not impleaded all the partners co-nominees as plaintiff-party to the suit. Resultantly, the
suit is not maintainable. Pending suit, one of the partners died and the legal representatives were not
brought on record. The question, therefore, was whether the suit is liable to be dismissed for non-
joinder of the necessary and proper parties ? The trial court as well as the High Court recorded as a
fact that the respondent-firm is a registered partnership firm and, therefore, under Section 69 of the
Partnership Act, the suit is maintainable. The trial court dismissed the suit on the ground that since
one of the partners died pending suit and the legal representatives were not brought on record, suit
was bad for non-joinder of necessary and proper parties. The controversy is covered by the
provisions of Order XXX of the CPC which gives special procedure for filing the suit by or against
a partnership firm carrying on business in the name other than its own. In this case, the relevant
provision is Rule 4 of Order XXX which provides thus :

                  "4. (1) Notwithstanding anything contained in Section 45 of the Indian Contract Act,
                  1872 (9 of 1872), where two or more persons may sue or be sued in the name of a
                  firm under the foregoing provisions 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 representative of the deceased as a party to the suit.

                  (2) Nothing in sub-rule (1) shall limit or otherwise affect any right 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 or survivors."
4. Sub-rule (2) is not relevant for the purpose of this case. By operation of sub-rule (1) of Rule 4 of
Order XXX, despite the embargo under Section 45 of the Indian Contract Act, it is not necessary
that the legal representatives of the deceased partner who dies whether before institution of the
proceedings or during the pendency of the proceedings, should be substituted as a co-nominee party
plaintiff/defendant to the suit. The trial court, therefore, was not correct in holding that the suit is
bad for non-joinder of necessary party. The High Court was right in the conclusion that the suit is
maintainable.

5. The next plea raised was that the renewal of promissory note was not executed by the appellants.
The ground in support thereof was that one of the coparceners who was the signatory to the
promissory note was hospitalised. Consequently, he could not have executed the promissory note on
the even date. The High Court has gone into depth of this aspect by consideration of the entire
evidence on record, mostly documentary evidence. Since it is a question of appreciation of evidence
and the High Court, as the final court of fact, on appreciation thereof came to the conclusion that the
promissory note came to be executed by all the persons and, therefore, the appellants-defendants are
liable for the payment of the amount due thereunder. This being the finding of fact, we do not find
any error of law in the finding recorded by the High Court.

6. The appeal is accordingly dismissed. No costs.