P.L. Mullick & Co vs Khaitan Consultants Ltd

Hiranmay Bhattacharyya, J

The 1st respondent herein filed Ejectment Suit No. 584 of 1995 which was renumbered as Ejectment Suit No. 195 of 2000 before the Learned Judge 4th Bench, Presidency Small Causes Court at Calcutta against a partnership firm under the name and style "Messrs P.L. Mullick & Co." for eviction and for recovery of khas possession from the suit room occupied by the firm as a tenant on the ground that the firm has wrongfully sublet and transferred possession of different portions of the suit room to several persons without consent of the landlord.

During the pendency of the said suit one of the partners of the firm namely Baldev Mullick alias B. Mullick died. The learned trial judge decreed the said suit by a judgment and decree dated February 11, 2003. A decree for eviction and khas possession was passed against the firm. Being aggrieved by the said judgment and decree, the firm preferred an appeal being Title Appeal No. 32 of 2003. The learned Judge 2nd bench, City Civil Court at Calcutta dismissed the Title Appeal by a judgment and decree dated October 12, 2004.

The firm preferred the instant second appeal challenging the judgment and Decree passed by the learned Judge of the 1st Appellate Court.

The instant second appeal was admitted under the provisions of Order XLI Rule 11 of the Code of Civil Procedure for hearing on the substantial question of law framed by order dated April 6, 2005.

During the pendency of the instant appeal, Paresh Nath Mullick, alias P.N. Mullick, who was a partner of the firm at the time of institution of the instant suit, died on April 21, 2021. In course of hearing of the instant appeal on November 18, 2025, the factum of death of the said Paresh Nath Mullick was brought to the notice of this Court by the learned Senior Advocate for the 1st respondent.

Thereafter, the 1st respondent took out an application being CAN 11 of 2025 praying for dismissal of the second appeal as abated.

The case made out by the 1st respondent in the aforesaid application is that at the time of institution of the suit, the appellant firm had only two partners one of whom namely Baldev Mullik died during the pendency of the said suit and the other died during the pendency of the instant second appeal. It is further stated in the said application that since no application for setting aside abatement has been filed, the instant appeal should be dismissed as abated.

The appellant also took out an application being CAN 12 of 2025 praying for leave to proceed with the instant appeal through its present partners.

The case made out by the appellant in the aforesaid application is that Mr. Tapas Kumar Hazra was a long standing partner of the appellant firm and was working in the suit premise which was well within the knowledge of the respondent. It was further stated therein that on August 7, 2013, P.N. Mullick and Tapas Kumar Hazra both retired and two new partners namely Dibanath Dey, Advocate and Sandip Kumar Bhattacharyya, Advocate were admitted as partners on the same day before retirement of the aforesaid partners. Subsequently the firm was reconstituted by inducting Mr. Jitendra Patnaik, Advocate as another partner by an instrument dated December 7, 2022.

Mr. Bose, learned Senior Advocate for the 1st respondent/ applicant in CAN 11 of 2025 contended that the partnership firm had only two partners namely Baldev Mullick and Paresh Nath Mullick. He further contended that Baldev Mullick died during the pendency of the suit and upon his death, the partnership firm stood dissolved by operation of law. In support of such contention, he placed reliance upon a decision of the Hon'ble SupremeCourt in the case of Mohammad Laiquiddin and Anr. vs. Kamala Devi Misra (Dead) By LRS and Others reported at (2010) 2 SCC 407. He further contended that since the defendant no. 1/ partnership firm had only two partners and upon the death of Baldev Mullick, the firm stood dissolved, there could not have been any reconstitution of the firm till the death of Paresh Nath Mullick. In support of such contention he placed reliance upon a decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax, M.P., Nagpur and Bhandara, Nagpur vs. Seth Govindram Sugar Mills reported at 1965 SCC Online SC 183; (1965) 57 ITR 510. Mr. Bose placed reliance upon a decision of the Special Bench of the Hon'ble Allahabad High Court in the case of Narendra Bahadur Singh vs. Chief Inspector of Stamps, U.P. reported at AIR 1972(All) 1 in support of his contention that mere dissolution of a firm does not bring about a complete extinction of the firm itself and the firm continues to exist until its affairs are finally and completely would up and the debts and liabilities are paid off. He contended that a decree can be passed against the firm if the firm has been served with the summons, even if no partner appears. In support of such contention he placed reliance upon the decision of the Hon'ble Supreme Court in the case of Gambhir Mal Pandiya vs. J.K. Jute Mills Co. Ltd. reported at AIR 1963 (SC) 243. Mr. Bose, contended that a partnership firm is nothing but a trade name. It is not a legal person and has no existence independent of its partners. In support of such contention, he placed reliance upon the decision of the Hon'ble Supreme Court in the case of ARM Group Enterprise Limited vs. Waldorf Restaurant reported at (2003) 6 SCC 423.

Mr. Chaturvedi, learned Senior advocate for the appellant/applicant in CAN 12 of 2025 seriously disputed the contentions raised by Mr. Bose. Mr. Chaturvedi contended that the partnership firm has been sued against in the instant suit and, therefore, the instant suit is one under Order XXX Rule 1 of the Code of Civil Procedure. He further contended that none of the partners have been impleaded in the instant suit and as such there was no necessity to bring to the knowledge of the Court the factum of death of the partners of the firm. He submitted that the provisions of Order XXII Rule 10A do not stand attracted to the case on hand.

Mr. Chaturvedi contended that in view of the provisions laid down under Order XXX Rule 4(2) of the Code, it was not obligatory on the part of the appellant to take any steps upon the death of Paresh Nath Mullick. Mr. Chaturvedi contended that the partnership firm was not dissolved even after demise of Baldev Mullick as there were two other partners. He contended that reconstitution of the partnership firm was well within the knowledge of the 1st respondent and in support of such contention he referred to the contempt petition being CPAN 2118 of 2014 filed by the 1st respondent alleging transfer of the tenancy in question by inducting new partners. He thus contended that there is no question of dissolution of the firm or abatement of the appeal. Mr. Chaturvedi placed reliance upon the decision of the Hon'ble Supreme Court in the case of Upper India Cable Co. and others vs. Bal Kishan reported at (1984) 3 SCC 462; the decision of the Hon'ble Patna High Court in the case of Awadheshwari Parasad Narain Singh & Ors. vs. M/s. Priti Garments, Patna & Ors. reported at AIR 2009 Pat 124 and the decision of the Full Bench of the Hon'ble Punjab and Haryana High Court in the case of Dharamdas Gokaldas and Another vs. Krishan Chand Hari Chand reported at 1965 SCC Online Punj 97 in support of his contention that an appeal cannot abate in absence of substitution of heirs and legal representatives of a deceased partner where the suit is instituted against the firm.

Mr. Bose, learned Senior Advocate for the 1st respondent distinguished the decisions cited by Mr. Chaturvedi by submitting that the said decision dealt with situations where the partnership consisted of more than two partners whereas in the instant case the partnership consists of only two partners.

Heard the learned advocates for the parties and perused the materials placed.

Order XXX of the Code of Civil Procedure deals with the mode of suing firms. It mandates that whenever suits are filed by or against a firm, it shall be made a party.

For the purpose of deciding the issue(s) involved in the aforesaid applications, it will be profitable to recapitulate the provisions of Order XXX Rules 1 and 4 of the Code of Civil Procedure and for such purpose the aforesaid provisions are extracted herein after.

"ORDER XXX

Suits by or against firms and persons carrying on business in names other than their own

Suing of partners in name of firm.-(1) Any two or more persons claiming or being liable as partners and carrying on business in, [India] may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.

(2) Where persons sue or are sued partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff of the defendant, suffice such pleading or other document is signed, verified or certified by any one of such persons.

Rights of suit on death of partner.-(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 effect 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."

Rule 1 provides that two or more persons claiming or being liable as partners may sue or be sued in the firm name. Rule 4 starts with a non-obstante clause and states that where a partner had died, the suit may be filed by or against the surviving partners. In applies only when the suit is in the name of the firm. Sub-rule (2), however, saves the right of a legal representative of a deceased partner to be brought on record as party to the suit.

Sub-rule (1) and (2) of Rule 4 of Order XXX was interpreted by the Hon'ble Supreme Court in the case of Anokhe Lal vs. Radhamohan Bansal and others reported at (1996) 6 SCC 730 wherein it was held that sub-rule (1) of Rule 4 of Order XXX has been prescribed to resolve the conflict by diluting the rigour contained in the rule embodied in Section 45 of the Contract Act in relation to a suit involving a partnership firm. It has been further held that sub-rule (1) of Rule 4 provides that it is not mandatory to join the legal representatives of a deceased partner as a party in the suit filed by or against a firm. It was also held therein that sub-rule(1) is not a hindrance to any legal representative of a deceased partner to get himself impleaded if he has otherwise any right to do so. Sub-rule(2) does not create any right as such for a legal representative to get impleaded in a suit but it only operates as an exception to sub-rule(1).

The question that falls for consideration is where the suit is instituted against the firm, in the event of death of a partner, would the suit or appeal, as the case may be, abate if the heirs and legal representatives of the deceased partner are not substituted within the prescribed period of limitation.

The said question can be answered by referring to the provision laid down in Order XXX Rule 4 which provides that where two or more persons are sued in the name of the firm and any such person dies whether before the institution of the suit 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.

In Upper India Cable Co. (supra), the suit for eviction was filed against the firm and its partners. The Hon'ble Supreme Court noted that the plaintiff landlord unequivocally treated the firm as a tenant and that the plaintiff sued the firm and joined partners as proper parties. The death of the two partners came to the notice of the High Court when the appeal was taken up for hearing. A question cropped up whether the appeal abated because the heirs and legal representatives of the two deceased partners were not substituted within the prescribed period of limitation. The Hon'ble Supreme Court held that in view of Order XXX Rule 4, it shall not be necessary to join the legal representatives of the deceased as a party to the suit. It was further held that the question of substituting heirs and legal representatives of the two proper formal parties does not arise and the death has no impact on the proceeding and the appeal cannot abate.

From the aforesaid decision it follows that failure to substitute the representatives of a deceased partner within the prescribed period of limitation does not result in abatement of the suit or the appeal, as the case may be, even if the partners are impleaded as proper parties in a suit or appeal filed by or against a firm, a fortiori, the suit or the appeal, as the case may be, would not abate if the suit or appeal is filed by or against a firm for not substituting the heirs and legal representatives of a deceased partner within the prescribed period of limitation.

The Hon'ble Bombay High Court in Godavari Pravara Canal Co-operative Purchase and Sale Union Ltd. v. Krishnarao, reported at AIR 1974 Bom 52 reiterated the observations made by the Hon'ble Full Bench of the Punjab High Court in Dharamdas Gokaldas (supra) and the Hon'ble Calcutta High Court in the case of Mohamed Valli Patel Versus Western Indian Oil Distributing Co. Ltd. reported at (1970) 74 CWN 1026 and held that the provision under Order 30 Rule 4 carves out an exception to the general rule contained in Section 45 of the Indian Contract Act that even though no legal representations are brought on record, the action itself is neither abated nor affected. It was further held that once Order 30 Rule 4 is to be given effect to, the suit can be continued without the legal representatives of the deceased partner. It was held thus-

"22. In Dharamdas Gokaldas v. Krishan Chand. AIR 1966 Punj 40 (FB) the Full Bench of the Punjab High Court considered the terms of this rule along with Order 22. Rules 4 and 11. It was a suit by the firm through its partner and during the course of the appeal a partner died. The Court held that appeal did not abate, though legal representatives of the deceased partner were not brought on record. In Mohamed Valli Patel v. Western Indian Oil Distributing Co. Ltd., (1970) 74 Cal WN 1026 it was pointed out by the Calcutta High Court that a suit filed in the name of a firm is a suit by all the partners and Rule 4(1) of Order 30, was a special provision. That being the position, it would necessarily exclude the operation of the general provisions contained in Orders 1 and 22 so far as they related to addition and substitution of parties in case of death of partners. It was further observed that under Rule 4(1) of Order 30, the surviving partner is enabled to file a suit in the name of the firm without impleading the legal representatives of the deceased partners, In terms, that rule conferred a right on the sole surviving partner to prosecute the suit without joining the deceased partners legal representatives.

I am in respectful agreement in what is stated in these two decisions. Once Order 30, Rule 4, is to be given effect to, it is clear that the suit can be continued without the legal representatives of the deceased partner.

The provision, therefore, clearly carves out an exception to the general rule contained in Section 45 of the Indian Contract Act and though no legal representatives are brought on record, the action itself neither abates nor is affected."

From the aforesaid discussion it follows that Order 30 Rule 4(1) being a special provision, it would necessarily exclude the operation of the general provisions contained in Orders 1 and 22 so far as they relate to the addition and substitution of parties in case of death of partners.

This Court accordingly holds that a suit or appeal framed under Order XXX Rule 1 or 4 shall not abate in case of a partnership of two or more person upon the death of a partner for non-substitution of the legal representatives of the deceased.

This Court has to now test whether the provisions laid down under Order XXX Rule 4 of the Code shall be applicable to the case on hand. For such purpose, this Court has to consider how the suit, out of which the instant appeal arises, was framed and instituted.

The 1st respondent/landlord claims that the firm was a monthly tenant of the suit room under the 1st respondent. It has been alleged in the plaint that the firm has wrongfully and without the consent of the landlord in writing, sublet and/or transferred possession of different portions of the suit room to third parties. Landlord claimed to have terminated the monthly tenancy of the firm by a notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956. The firm was impleaded as the 1st defendant and a decree for eviction and khas possession as well as other consequential reliefs were prayed for against the firm.

The partners of the firm were not impleaded as parties. No relief of any kind was also prayed for against the partners in their personal capacity. The decree for eviction would operate against the firm as, according to the plaintiff/respondent no. 1, the firm was the tenant.

After going through the plaint, this Court holds that the suit was framed and instituted under Order XXX of the Code of Civil Procedure. One of the partners of the firm namely Baldev Mullick died during the pendency of the suit. By applying the provisions of Order XXX Rule 4(1) of the Code, this Court is of the considered view that upon the death of Baldev Mullick, it was not necessary to join the legal representative of the said deceased as a party to the said suit. The suit, therefore, did not abate for non-substituting the legal representatives of the said deceased as a party to the suit.

The specific case made out by the 1st respondent in CAN 11 of 2025 is that upon the death of Baldev Mullick, the firm stood dissolved by operation of law and Paresh Nath Mullick continued as sole appellant till his death and the appeal stood abated for not seeking setting aside of abatement.

This Court is not inclined to accept the aforesaid contention of the 1st respondent that Paresh Nath Mallick continued as a sole appellant till his death as even after the death of Baldev Mullick, the suit still continued to be a suit against the firm and the 1st appeal and the 2nd appeal are appeals preferred by the firm under Order 30 Rule 4(1) of Code of Civil Procedure and not Paresh Nath Mullick in his personal capacity.

Mr. Bose, learned Senior advocate for the 1st respondent would contend that after the death of Paresh Nath Mullick, the persons claiming to be in possession have no right in praesenti either to pursue the instant appeal or to represent the firm.

Order XXX Rule 1 of the Code enables any party to a suit filed by or against a firm to apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.

Admittedly, Baldev Mullick died during the pendency of the suit and Paresh Nath Mullick was alive at the time of filing the first appeal and the instant second appeal. The 1st respondent did not apply to the Court for a statement of the names and addresses of the persons who were, at the time of cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.

The specific case made out by the appellant in CAN 12 of 2025 is that the firm was reconstituted from time to time.

In paragraph 8 of CAN 12 of 2025, it has been specifically stated that the then existing partners inducted two new partners namely Dibanath Dey, Advocate and Sandip Bhattacharyya, Advocate, by an instrument dated August 7, 2013, and thereafter two partners namely P.N. Mallick and Tapan Kumar Hazra retired. In paragraph 12 it was stated that the firm inducted another partner namely Mr. Jiterndra Patnaik, Advocate by an instrument dated 07.12.2022.

The statement made in the aforesaid paragraphs were dealt with by denying and disputing each and every allegations save and except what are matters of record.

At this stage it would be relevant to point out that sometimes in the year 2014, the 1st respondent filed a contempt application being CPAN 2118 of 2014 wherein, the 1st respondent has described Dibanath Dey and Sandip Kumar Bhattacharya as partners of P.L. Mullick & Co. However, Paresh Nath Mullick was not described as a partner of the said firm. The acts of contempt alleged were becoming partners of "M/s P.L. Mullick & Co." and inducting two new partners into the partnership firm.

In view of the aforesaid factual matrix, this Court is of the considered view that reconstitution of the firm from time to time was well within the knowledge of the 1st respondent and that might be the reason for not applying to the Court for a statement of names of the partners of the firm after the death of Baldev Mullick during the pendency of the suit or during the pendency of the 1st appeal and till the filing of the present applications. This Court holds that the 1st respondent has admitted the fact that the firm was reconstituted. For the reasons as aforesaid, this Court cannot allow the 1st respondent to throw a challenge to the reconstitution of the firm from time to time at such a belated stage.

The case made out by the appellant that Paresh Nath Mullick retired from the firm also appears to have been admitted by the 1st respondent in the contempt application.

From the obituary notice annexed to the application being CAN 11 of 2025 filed by the 1st respondent, it appears that P.N. Mullick was referred to as "erstwhile partner of M/s. P.L.Mullick & Co." Thus, it is evident that P.N.Mullick alias Paresh Nath Mullick was not an existing partner of the firm at the time of his death. Therefore, his death cannot be any embargo in proceeding with the instant appeal.

This Court is, therefore, not inclined to accept the contention of Mr. Bose that there was failure on the part of the appellant to perform its obligation under Order 22 Rule 10A of the Code.

In the light of the aforesaid discussion, this Court holds that the instant second appeal was filed by the persons claiming to be partners in the name of the firm and there was no necessity to join the legal representative of the deceased as a party in the instant appeal. The instant appeal has not abated and the same can be proceeded with by the existing partners in the name of the firm.

In Awadheshwari Parasad Narain Singh (supra) the proposition of law laid down in Upper India Cable Company (supra) and Anokhe Lal (supra) has been reiterated. The said decision supports the view taken by this Court.

The main question that fell for consideration before the Hon'ble Supreme Court in Waldorf Restaurant (supra) was whether the respondent firm can claim status of subtenant and seek protection against eviction in execution of a compromise decree obtained against the tenant under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. On the facts of the said case it was held that Waldorf restaurant is merely a trade name and not a legal entity independent of the proprietor of the business carried on in that name and the partnership firm came into existence later on. The said decision being distinguishable on facts cannot be applied to the case on hand.

In Seth Govindram Sugar Mills (supra), the question that arose was whether on the death of a partner, his heirs, automatically became the partners of the firm. While deciding the said issue, the view of the Hon'ble Allahabad High Court wherein it was held that partnership is not a matter of status but a matter of contract and no heir can be said to become a partner with another person without his consent express or implied was approved by the Hon'ble Supreme Court. The issue in the case on hand is not whether the heirs of the deceased partners automatically became the partners of the firm.

In Mohammad Laiquiddin (supra), the Trial Court decreed the suit and passed a preliminary decree of dissolution and for rendition of accounts. After the suit was decreed and before an appeal was filed, the defendant in the said suit died and his legal representatives were brought on record before the first appellate court. On such facts it was held that if the legal representatives of a deceased partner were not at all interested in continuing the firm or to constitute a fresh firm, they cannot be asked to continue the partnership, as there is no legal obligation upon them to do so as partnership is not a matter of heritable status but purely one of contract. The said decision is also distinguishable on facts. That apart, the suit in the said reported case was not one under Order XXX of the Code of Civil Procedure.

In Narendra Bahadur Singh (supra), after considering various provisions of the Partnership Act more particularly Section 40, 41, 42, 43. 44, 45, 46. 47 and 48 it was held that a mere dissolution of a firm does not bring about a complete extinction of the firm and only for limited purposes as mentioned in the said sections, the firm continues to exist until its affairs are finally and completely wound up. The said decision deals with a different fact situation and cannot come to the aid of the 1st respondent.

In Gambhir Mal Pandiya (supra) in execution of the decree passed against the firm, the respondent therein wished to proceed against the personal property of one of the partners of the firm and an application under Order 21 Rule 50(2) of the Code of Civil Procedure for leave of the Court was filed. The Hon'ble Supreme Court held that the decree passed against the firm can also be executed against persons who were not summoned in the suit as partners and an enquiry under Order 21 Rule 50(2) does not entitle the person summoned to reopen the decree. The said decision being distinguishable on facts cannot come to the aid of the 1st respondent.

For all the reasons as aforesaid, the application being CAN 11 of 2025 filed by the 1st respondent stands rejected and the application being CAN 12 of 2025 filed by the appellant stands allowed. Consequently the instant appeal shall proceed in the name of the firm.

Urgent photostat certified copies, if applied for, be supplied to the parties upon compliance of all formalities.

LATER: (HIRANMAY BHATTACHARYYA, J.)

Date: 06.01.2026

After this order was pronounced in open Court, Mr. Mainak Bose, learned Senior Counsel appearing for the first respondent, prays for stay of operation of this order. The prayer for stay has been vehemently opposed by Mr. Chaturvedi, learned Senior Counsel appearing for the appellant. By drawing the attention of this Court to the order dated October 6, 2025, Mr. Chaturvedi submits that in a Special Leave Petition at the instance of the first respondent, the Hon'ble Supreme Court by an order dated October 6, 2025 directed the High Court to take up the appeal and decide the same expeditiously preferably within a period of three months. He submits that thereafter the appeal was assigned before this bench and was taken up for hearing and he has already made his submission for the appellant and Mr. Bose also commenced his argument. He further submits that considering the fact that this appeal is of the year 2005 and a direction for expeditious disposal of the appeal has been passed by the Hon'ble Supreme Court, the prayer for stay of operation of this order should be rejected. This Court has held that the appeal has not abated upon assigning reason in support thereof. For such reason this Court is not inclined to allow the prayer for stay of operation of the said order and the same is thus rejected. However, considering the fact that the issue relating to abatement of the appeal was decided by this order and the same goes to the root of the jurisdiction to decide the instant appeal on merits and the first respondent intends to challenge this order before the Hon'ble Supreme Court, this Court feels that the hearing of the second appeal should be adjourned for a limited period for the ends of justice. In view thereof, list the appeal for further consideration on 28th January, 2026 at 2 PM.