Mool Chand and others vs M/s Rajasthan Steel Trading Company and others

D.V. Sehgal, J.—This revision petition is directed against the order dated March 19, 1986 passed by learned Sub Judge Ist Class, Amloh, whereby an application filed by the Petitioners herein under Order 1 Rule 10 CPC (for short ''the Code) for being impleaded as Defendants has been dismissed.

There are two firms by the name of Rajasthan Steel Trading Company and Rajasthan Iron Traders, which in the instant suit in the court below are the Plaintiff and Defendant No. 1 respectively. It is not in dispute that the Plaintiff firm originally was constituted of four persons, namely, Banwari Lal, Lehri Mal, Gayatri Devi and Mool Chand. Defendant No. 1, on the other hand, was constituted by two persons namely Banwari Lal and Makhan Lal Defendant No. 2 who is Respondent No. 3 herein. Both the firms were dissolved on May, 31, 1983 and were reconstitued on June 1 1983. Sarvshri Mool Chand, Lehri Mal and Gayatri Devi Petitioners left the Plaintiff firm. Banwari Lal continued as its existing partner. On the other hand, on dissolution of the firm, Defendant No. 1 Banwari Lal left it and on re-constitution it constituted of Makhan Lal the existing partner besides the Petitioners herein.

The Plaintiff firm through Banwari Lal then filed the instant suit for recovery of Rs. Two Lacs against the firm Defendant No. 1 and impleaded Makhan Lal the existing partner as Defendant No. 2 The Petitioners apprehend that Makhan Lal would not defend their interests and thus they filed the application under Order 1 Rule 10 of the Code, which has been dismissed by the learned trial Court.

The learned trial Court has observed in the impugned order that Banwari Lal prosecuting the suit on behalf of the Plaintiff firm made a statement on January 25. 1 1988 during the course of his cross-examination, that in case the suit amount is not recovered from Makhan Lal Defendant No 2, the Petitioners herein shall be liable to pay the same.

It is, however, contended on behalf of the Plaintiff-Respondent No 1 that in case the amount is not recovered from Defendant No. 1 or from Makhan Lal Defendant No. 2, the Plaintiff firm shall not seek recovery of the decretal amount from the Petitioners. That in my view, however, does not afford the requisite relief to the Petitioners.

No. doubt, under Order 30 Rule 1 of the Code, the firm or its partners may sue or be sued in the name of the firm of which such persons were partners at the time of the accuring of the cause of action. There is also no dispute that at the time when the cause of action arose the Petitioners herein were not the partners of the firm Defendant No. 1. They were rather the partners of the Plaintiff firm. In my view, however, the provisions of Order 30 Rule J of the Code shall not govern the situation obtaining in this case.

The firm Defendant No. 1 as originally constituted had two partners Banwari Lal and Makhan Lal Defendant No. 2. Banwari Lal ceased to be a partner of the firm Defendant No. 1 and in fact now he is prosecuting the suit as partner of the Plaintiff. Thus, at the time the cause of action arose the existing partners of the firm Defendant No. 1 being Banwari Lal and Makhan Lal ought to have been liable for the decretal amount in case the suit is eventually decreed On dissolution of the firm the reconstituted firm neither represents the interests of the original firm nor could it be impleaded as a deffendant. In case Banwari Lal had a claim be could prosecute the same against Makhan Lal Defendant No. 2 and not against the firm Defendant No. 1 as at present constituted.

It is clear that if in the absence of the Petitioners the suit is decreed against the Defendant No 1 as at present constituted, the assets of the Petitioners in the said firm shall be liable for satisfaction of the decree. Their interests are, therefore, directly affected by the suit and its eventual result.

Mr. M L. Sarin, Senior Advocate for the Respondents places reliance on the decision in Banarsi Dass v. Panna Lal (1968) 70 P.L.R. 451, to contend that the Plaintiff is the dominus lit''s and he has a right to choose whom to implead as Defendant to the suit. No one who is not party to the suit, has got the locus standi to impose himself as a party thereto. I am of the considered view that the ratio of the law laid down in Banarsi Dass''s case (supra) is not applicable to the facts obtaining in the present case.

In view of what has been discussed above, I allow this revision petition, set aside the impugned order dated March 19, 1986 passed by the learned trial Court without any orders as to costs. J allow the application of the Petitioners under Order I Rule 10 of the Code. They should be impleaded as Defendants to the suit which shall then proceed to be decided on merits in accordance with law.

The parties, through their counsel, are directed to appear before the learned trial Court on November 5, 1988.