SIVARAMAN NAIR, J.

( 1 ) THE plaintiff in O. S. No. 119 of 1983 before the Subordinate Judge, Machilipatnam is the appellant. That was partnership firm. The suit was instituted against another firm, of which the second defendant was the managing partner. The second defendant was one of partners of the firm Annapurna Fertilisers and General Stores, Bantumilli, which was initially constituted with Sabbisetti Rattayya and others. That was dissolved on 1-11-1982 with the simultaneous retirement of the second defendant from the partnership. Thereafter, a new partnership was formed under the name and style of the old firm consisting of different partners including the erstwhile managing partner. The new firm was constituted with effect from 1-11-1982. Simultaneously, the second defendant formed the first defendant partnership with himself and others. There were transactions between the first defendant firm and the plaintiff firm between December, 1982 and January, 1983.

( 2 ) THE plaintiff-firm filed O. S. No. 119 of 1983 on 3-9-83 claiming an amount of Rs. 1,43,56. 15 ps. from the first defendant-firm and its managing partner-the second defendant. The defendants resisted the suit claim on various grounds. After trial was over, they filed an application for raising an additional issue. That application was allowed by the trial Court by an order dated 30-6-1989. That related to maintainability of the suit. The contention urged in support of the issue of non-maintainability of the suit was two-fold: (i) that the firm which was registered on 8-9-1983 could not have filed a suit to enforce the liability incurred by the defendants in December 1982 and January 1983 much prior to the registration of the new firm; and (ii) that the plaint was presented as if the liability was owned to the old firm, which had been dissolved on 1-11-1992.

( 3 ) THAT was sought to be resisted by the plaintiff contending that the subsequent registration of the firm justified the maintainability of the suit. The trial Court reopened evidence and tried the question of maintainability as additional issue No. 1. The trial Judge held that the firm of the plaintiff, the second defendant and others which was constituted in 1980 and registered under Ex. A. 23 was dissolved on 1-11-1982. It was also held that the plaintiff firm was constituted by Ex. A. 3 dated 28-3-83 with effect from 1-11-1982 and the same was registered only on 8-9-83 as per Ex. A. 19 at the earliest. The Court held therefore that the suit was not maintainable in view of the provisions contained in Section 69 (2) of the Indian Partnership Act, even though he held in favour of the plaintiff on merits on some of the other issues. The plaintiff has filed this appeal.

( 4 ) COUNSEL for the plaintiff submitted that the liability of the defendant having been found in favour of the plaintiff, there was no justification for dismissing the suit on the ground of maintainability, which was raised at the very fag end of the trial. He also submitted that the duty of the Court being to do justice between parties, dismissal of the suit on a hyper-technical point was improper. Reliance was placed on a decision of our learned brother Radhakrishna Rao, J. reported in Atmuri Mahalakshmi v. Jagadesh Traders, 1990 (I) An LT 206 : AIR 1990 AP 288. Reference was also made to a decision of the High Court of Madras reported in Varadarajulu v. Rajmanika, AIR 1937 Madras 767.

( 5 ) SECTION 69 (2) of the Indian Partnership Act is in the following term s:--"no suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the registration of firms as partners of the firm,"

( 6 ) IT appeals very clear that the suit could have been filed by the plaintiff firm only if it was registered as such and the persons suing were shown as partners in the Register of Firms. The finding of the learned

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