- (1.) While issuing notices to the respondents herein, on 15.12.2014, I had recorded the factual matrix and the contentions of the petitioner in paragraph Nos.1 to 4, which are as follows:- "1. RCS No.114/96 is pending before the Trial Court, wherein the plaintiff has preferred to implead the partnership firm as defendant No.1 and has impleaded the partners of the said partnership firm as defendants 2, 3, 4 and 5. 2. The deceased father of the petitioner is also said to be one of the partners of the defendant No.1 partnership firm and was later on added as the 6th defendant by order dated 21.11.1990 below Exh.61. 3. The said 6th defendant Rajendra Sagarmal has passed away on 19.1.2014. Application at Exh.131 was moved by the petitioner for being added as a defendant in his capacity as a legal representative of the deceased Rajendra Sagarmal. Considering the objections of the defendants and after hearing the petitioner, the said application was rejected by the impugned order dated 8.10.2014 primarily on the ground that, the dispute involves a partnership firm and in such circumstances, order 30 rule 4 of the CPC does not permit a legal heir to be added as a defendant only because, he is the son of the deceased partner. 4. Grievance of the petitioner is that the result of RCS No. 114/96 is likely to impact the rights of the petitioner, since he contends specifically that, the property said to be in the possession of the partnership firm is now in the possession of the petitioner. Learned counsel hastens to add that the property in his possession though is a subject matter of the said suit, was never in the possession of the partnership firm. Yet, if the suit is allowed, the petitioner is likely to be evicted from the same."
(2.) The petitioner, therefore, submits that when the sixth respondent, father of the petitioner and defendant No.6 in RCS No. 114 of 1986 had passed away, the petitioner gets a right under Order XXIII of the Civil Procedure Code ("CPC") to apply for being impleaded in place of his deceased father. Shri Gholap further submits that the rigors of Order XXX Rule 4 of the CPC would, therefore, not be attracted and the petitioner's case would then fall under Order XXX Rule 4(2)(a) of the CPC.
(3.) Shri Gholap further points out that the prayers made in the suit are against all the defendants and as such, the petitioner would lose a valuable right of defending himself, in view of being the legal representative of deceased respondent No.6.;