MATHEW, J. - (1.) CIVIL Appeal No. 227 of 1970. There were two firms called "Amin Chand and Sons" and "Landra Engineering and Foundry Works." The partners of the firms were three brothers Bakshi Ram, Shiv Dayal and Kishan Chand, after the retirement of the 4th partner. Certain trade marks were registered in the names of the firms. On January 30, l967, Bakshi Ram gave notices to the other partners dissolving the firms. The notices were served upon the other Partners sometime before March, 1967. On October 3, 1967, Bakshi Ram filed two suits for rendition of accounts against the other two partners in the subordinate Judge's court at Jullundur. The defendants in the suits filed applications under Section 34 of the Indian Arbitration Act for stay of the trial of the suits on the ground that the court had no jurisdiction to proceed with the trial in view of the clause for arbitration in the partnership agreements. On February 4, 1968, Bakshi Ram died and his legal representatives, 10 in number, were brought on record. On June 24, 1968, the parties agreed to have the matter referred to arbitration. The court stayed the trial of the suits and referred the matter to arbitrators. Before the arbitrators, a question was raised whether the legal representatives of Bakshi Ram were entitled to continue the suits. The arbitrators stated a special case for the opinion of the court under the first part of S. 13 (b) of the Act on the question of law, whether the legal representatives are competent to continue the suits. On December 20, 1968, a suit was filed by a firm called "Amin Chand and Sons" through Shiv Dayal, in the District Court at Rohtak against three of the legal representatives of Bakshi Ram trading under the names "Bakshi Ram and Sons", "Sohan Lal and Brothers" and "Kaybus Industries and others', for a permanent injunction restraining them from using certain trade marks. The plaintiff-respondents in the suit applied for restraining the defendant-appellants and their dealers from manufacturing or selling agricultural implements under trade marks Nos. 125062 and 138974 which were originally registered in the name of Amin Chand and Sons of which Bakshi Ram, Shiv Dayal and Kishan Chand were partners. The court granted an ex parse injunction. That was vacated on the objection of the defendants in the suit. Thereafter applications were filed by the plaintiff-respondents for reviewing the order dismissing the application for temporary injunction, and for issue of a temporary injunction to restrain the defendant-appellants from using the trade marks registered in the name of Amin Chand and Sons of which Bakshi Ram was a partner. These applications were allowed and temporary injunction as prayed for was granted. The defendant-appellants preferred an appeal against that order to the High Court. The High Court confirmed the order. This appeal, by special leave, is directed against that order.
(2.) DURING the pendency of the appeal here, one of the appellants, namely, Dharam Vir, died on May 14, 1970. The application to implead his legal representatives was filed only on July 14, 1970. The respondents, by way of preliminary objection, contended that the appeal has abated. So, the first question for consideration is whether the appeal has abated. The plaint shows that three persons were sued in the names of the firms /under which they were carrying on business. The injunction order was issued against these persons in the names of the firms. The injunction order operated against these persons as carrying on business in the names of the firms.
(3.) ORDER 30, Rule 4 of the Civil Procedure Code provides that notwithstanding anything contained in S. 45 of the Indian Contract Act, 1872, two or more persons may sue or be sued in the name of a firm under the foregoing provisions' and if 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. We have already said that the injunction order was directed against the partners in the names of the firms and that it operated as against them. The partners filed the appeal in the names of the firms against the order and when one of the partners died, the failure to implead his legal representatives would not cause the appeal to abate. Under Section 107 of the C. P. C. the provisions of Rule 4 of ORDER XXX will apply to appeals also.;