S.K.Mookherjee, J. - (1.) The predecessor-in-interest of the present opposite parties instituted a suit, inter alia, for a declaration that he is/was a partner with the present revisional petitioners in a firm, known as M/s. Balai Chand Paul for accounts and for other reliefs. During the pendency of the said suit the plaintiff died and on his death the present opposite parties, claiming to be his heirs and legal representatives, made an application for substitution, which having been allowed by the impugned order, the instant revisional application has been preferred.
(2.) The short question which arises in the present revisional proceeding is whether in a suit for declaration that the plaintiff is or was a partner and for accounts, substitution of his legal heirs and/or representatives is permissible in law.
(3.) We have heard Mr. Indrajit Mondal in support of the revisional application and Mr. Ashok Banerjee on behalf of the opposite parties. In terms of the provisions of Order 22, rule 31 of the Code of Civil Procedure the legal representatives of the deceased plaintiff would be substituted if the right to sue survives. Right to sue means a right to bring a suit for the same relief which the deceased plaintiff could ask for at the time of his death. In this connection, we may, by way of analogy, refer to section 306 of the Indian Succession Act, which embodies the cases where due to the nature of some of the right which are personal and cannot bring any relief to the surviving legal heirs, the suit is not liable to be continued by the legal heirs on the death of the original applicant/plaintiff. In the instant case, considering the specific prayer of the deceased plaintiff in the suit to the effect that he was a partner and for accounts, we are of the view that the legal representatives who have been substituted by the impugned order could have asserted the right to the relief by instituting the same suit. It can certainly be argued that all the reliefs in the suit would not be available to the substituted plaintiffs but with necessary amendments some of the such reliefs may still available to the plaintiffs. The right to sue within the meaning of Order 22, rule 3 of the Code of Civil Procedure, therefore, survives to the present opposite parties on the decease of the original plaintiff. The learned Assistant District Judge was, therefore, right and justified in allowing the application for substitution. This construction can also be buttressed on the well known canon of construction that multiplicity of proceeding should always be avoided.;