Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1243 of 2018 Petitioner :- M/S Mayor And Company Respondent :- M/S Pragati Steels And 4 Others Counsel for Petitioner :- Tawvab Ahmed Khan
Hon'ble Manoj Kumar Gupta,J.
The instant petition has been filed challenging the order dated 31.7.2017, by which the trial Court allowed an application for amendment of the plaint, whereby, the names of the heirs of the deceased partner through whom the suit was instituted on behalf of the partnership firm has been substituted. The case of the person seeking impleadment was that the plaintiff firm stood dissolved on 14.2.2015. The partner, R.K. Saxena, through whom the suit was instituted died on 16.6.2016. Consequently, they being heirs and legal representatives are entitled to pursue the litigation. The trial Court has allowed the amendment application. Aggrieved thereby, revision has been filed, which has also been dismissed.
Counsel for the petitioner submitted that the heirs of a deceased partner are not entitled to be substituted. It is only partner of reconstituted firm, who can continue the litigation.
It is the specific case in the application filed for amendment of the plaint that the firm stood dissolved on 14.2.2015. There is no evidence that thereafter the firm has been reconstituted and therefore, in the opinion of the Court, the trial Court committed no illegality in permitting the heirs and legal representatives of a deceased partner to be substituted for purposes of continuing the litigation. Such a right is also specifically recognised under Order 30, Rule 4(2)(a) CPC. The issue as to whether the heirs of a deceased partner are entitled to the decree claimed in the suit, which is for recovery of money, it would be decided in the suit. It is settled law that correctness of the plea, which is sought to be introduced by amendment, is not to be examined, while considering amendment application. In this view of the matter, this Court does not find any illegality in the impugned order to warrant interference in exercise of supervisory power under Article 227 of the Constitution.
The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J) Order Date :- 27.2.2018 AM/-