- (1.) This application is at the instance of the Defendant Nos. 1, 2 and 7 and is directed against the order No. 72 dated April 10, 2008 passed by the learned Civil Judge (Senior Division, Sealdah in Title Suit No. 142 of 1999, thereby allowing an application under Order 30 Rule 4 of the Code of Code of Civil Procedure.
(2.) The short fact is that the Plaintiff/opposite party herein instituted a suit against M/s. Bagmari Industrial Corporation, a partnership firm and its partners for recovery of possession, arrears of rent, mesne profits and other relief's. The firm and its partners are contesting thee said suit by filing a written statement denying the material allegations made in the plaint. The suit at the stage of further peremptory hearing. In the mean time, the Defendants Nos. 4 and 6 died during the pendency of the suit. Then the Plaintiff filed an application under Order 30 Rule 4 of the Code of Code of Civil Procedure and the application was allowed by the impugned order. Being aggrieved, this application has been filed by the aforesaid Defendants. Now the question is whether the impugned order should be sustained.
(3.) Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the Plaintiff instituted the said suit for recovery of possession and other relief's as stated hereinabove against the firm and its partners. The suit was instituted against the Defendant No. 1 being a partnership firm having its office at 18, Mallick Street, Calcutta - 700 007 under Police Station Burrabazar and its partners who are described as the Defendant Nos. 2 to 9. There is no dispute that the Defendant Nos. 4 and 6 died during the pendency of the suit and that they were partners of the firm. It is not also dispute that the firm is also represented by other Defendants and the verification of the written statement was done by the Defendant no 7. The relief sought for in the plaint could well be granted against the firm and its partners. The Defendant Nos. 2 to 9 were, therefore, being termed as partners of the firm and when two of the partners died the suit can well proceed against the firm and other partners. It may be pointed out that the learned Trial Judge has rightly observed in the impugned order that the lease deed executed between the Plaintiff and the firm were signed by three partners only on behalf of the firm and not by all the partners. The lease deed clearly indicates that the lease shall be bound upon the firm, their respective heirs, executors, administrators and representatives on the Other Part. At present there is no indication that the heirs of the deceased partners have been included as the partner of the firm.;