1984 (3) TMI 435

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....ts-present appellants. 2. The suit for eviction was dismissed by the trial Court. The respondent-landlord preferred Civil appeal No. 234 of 1970 in the court of II Additional Civil Judge, Agra. The appeal of the landlord succeeded and a decree for eviction was made. There was also a decree for mesne profits and cost. 3. The firm and the partners filed Second Appeal No. 1017 of 1971 in the High Court of Judicature at Allahabad. 4. When the appeal was pending two of the partners Shyam Lal and Gulab Chand died. This fact came to the notice of the High Court when the appeal was taken up for hearing. The High Court posed to itself the only question whether the appeal abated because the heirs and legal representative of the two deceased ....

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....d nor denied. This aspect goes to the root of the matter because this Court has now to decide whether the order of the High Court disposing of the Second Appeal preferred by the present appellants as having abated as the appellants failed implead heirs and legal representatives of the two partners who were merely found as proper parties who died pending the appeal is sustainable. 6. Averments in the plaint unmistakably show that the plaintiff-landlord unequivocally treated the firm as the tenant. The suit for eviction was filed against the firm but as other defendants claimed to be the partners of the firm, they are impleaded by the plaintiff as proper parties. It was open to him not to implead the partners of the firm in view of the pro....

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....ed. In the suit for eviction firm was impleaded as the tenant and the deceased partners were impleaded as merely proper parties which would tantamount to making them formal parties. No relief of any kind was prayed for against them in their personal capacity. The decree for eviction would operate against the firm according to the plaintiff himself because the firm was the tenant. 9. Therefore, we posed a question to the learned Counsel for the respondent whether on the death of a proper party whose heirs and legal representatives are not substituted and when no relief was claimed against such a party would the suit or appeal abate more so when the parties against whom relief is claimed is very much there and is prosecuting its appeal. Le....