Case Note & Summary
The appeal before the Supreme Court arose from an eviction suit filed by the appellant landlord against a tenant partnership firm under Section 12(1)(a) and (f) of the Madhya Pradesh Accommodation Control Act, 1961. The suit was contested by the firm, and the written statement was signed by one of its partners, Motiram. During the pendency of the suit, the first respondent, son of deceased partner Hanuman Prasad, filed an application under Order I Rule 10(2) of the Code of Civil Procedure, 1908 seeking impleadment as an additional defendant. The trial court dismissed that application, and the District Court dismissed the revision on 15.3.1994. The first respondent then filed a second application under Order 30 Rule 4 of the Code, which was also dismissed by the trial court. He filed a writ petition under Article 227 of the Constitution challenging both orders, later converted into a revision petition. While the revision was pending, the trial court decreed the suit on 26.5.1994, and the District Court confirmed the decree in appeal on 29.11.1994. Despite being informed of these developments, the High Court single judge passed the impugned order on 30.1.1995 allowing the second application for impleadment, with an observation that the first respondent could proceed with his remedy in accordance with law. The Supreme Court noted that on the date of the impugned order, no suit or appeal was pending before any court, and therefore the revision should have been dismissed as infructuous. The Court further observed that the High Court should have been circumspect in dealing with a third-party impleadment application when the plaintiff, as dominus litis, opposed it, and when such addition would involve a de novo trial. The Court referred to the Privy Council decision in Naba Kumar Hazra v. Radhashyam Mahish, AIR 1931 PC 229, which declined impleadment even of a necessary party to avoid a de novo trial. Analysing Order 30 Rule 4 of the Code, the Court held that sub-rule (1) is an exception to Section 45 of the Indian Contract Act, 1872, making it non-mandatory to join the legal representative of a deceased partner in a suit involving a firm. Sub-rule (2) does not create an independent right for a legal representative to be impleaded; it merely operates as an exception to sub-rule (1). The Court held that Rule 4(2) of Order 30 cannot be invoked where Order I Rule 10 of the Code cannot be invoked. Accordingly, the Supreme Court allowed the appeal, set aside the impugned order of the High Court, and directed no costs.
Headnote
A) Civil Procedure - Impleadment - Non-pending Lis - Code of Civil Procedure, 1908, Order I Rule 10(2) - High Court allowed impleadment after suit had been decreed and appeal confirmed, leaving no pending suit - Supreme Court held that no order for impleadment can be passed in a non-pending lis and the revision should have been dismissed as infructuous - Held, impugned order set aside (Paras Not mentioned). B) Civil Procedure - Impleadment - Dominus Litis and De Novo Trial - Code of Civil Procedure, 1908, Order I Rule 10(2) - Plaintiff opposed third-party impleadment as dominus litis - Court should be circumspect and normally disallow if it would involve de novo trial; Privy Council in Naba Kumar Hazra v. Radhashyam Mahish declined impleadment even for necessary party to avoid de novo trial - Held, first respondent had no case of necessary party (Paras Not mentioned). C) Civil Procedure - Partnership Suits - Right of Legal Representative of Deceased Partner - Code of Civil Procedure, 1908, Order 30 Rule 4; Indian Contract Act, 1872, Section 45 - Rule 4(1) is exception to Section 45 by making it non-mandatory to join legal representative; Rule 4(2) does not create independent right but only operates as exception to sub-rule (1) - Rule 4(2) cannot operate where Order I Rule 10 cannot be invoked - Held, application under Order 30 Rule 4 not maintainable (Paras Not mentioned).
Issue of Consideration
Whether a person can be impleaded as a party to a suit when no suit or appeal is pending before any court; whether Order 30 Rule 4(2) CPC creates an independent right for a legal representative of a deceased partner to be impleaded; whether the High Court should have dismissed the revision as infructuous.
Final Decision
Appeal allowed; impugned order dated 30.1.1995 passed by the High Court allowing impleadment is set aside; no order as to costs.
Law Points
- Impleadment in non-pending lis is impermissible
- Order 30 Rule 4(2) CPC does not create an independent right
- Rule 4(1) is exception to Section 45 Contract Act
- Court should be circumspect when dominus litis opposed and de novo trial would result
