The main legal point established in the judgment is that the jurisdictional fact of registration of the partnership firm must be averred in the plaint to avoid the suit being rendered void under Section 69(1) of the Partnership Act, 1932.

JUDGMENT

Debangsu Basak, J. - In a suit amongst the partners of a partnership firm, the defendant No. 1 has applied for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908.

2. Learned Senior Advocate appearing for the defendant No. 1 has submitted, that the suit is barred under Section 69(1) of the Partnership Act, 1932. He has contended that, two criteria are required to be fulfilled under Section 69(1) of the Act of 1932 for it to be attracted. Firstly, the plaintiffs must have sued as partners of the partnership firm. The defendants have also to be sued as partners of such firm. Secondly, the suit has to be for the enforcement of the rights arising from the contract of partnership.

3. Referring to the pleadings in the plaint, learned senior advocate appearing for the defendant No. 1 has submitted that, the plaint discloses that the plaintiffs have filed the suit as partners of the partnership firm of Md.Sirajuddin& Company. Therefore, the first criterion under Section 69(1) of the Act of 1932 has been satisfied. The second criteriaalso stands satisfied according to him,as the plaint has been for the enforcement of alleged rights arising from the provisions of the deed of partnership. According to the plaintiffs, the partnership firm can never be dissolved and that, the defendant No. 1 has been acting in violation of the terms of Clauses 11, 19 and 21 of the partnership firm. The plaintiffs having claimed reliefs against the defendants on the basis of the partnership between the parties both the criteria stand satisfied.

4. Learned Senior Advocate appearing for the defendant No. 1 has submitted that, although, the suit is within the ambit of Section 69(1) of the Act of 1932, there is no averment in the plaint that the partnership firm is a registered partnership firm. He has submitted that, the same is a jurisdictional fact. Unless the partnership firm has been registered, the Court's jurisdiction to entertain the plaint would be barred by law and the plaintiffs will have no cause of action unless they pleaded in the plaint that the firm has been registered under the Act of 1932. He has submitted that, the plaint must aver the jurisdictional fact that the partnership firm is registered under the Act of 1932. In support of such contentions, he has relied upon (The A.P. Co-op. Wool Spinning Mills Ltd. &Anr. v. G.Mahanadi & Co. Wool Merchants &Ors., (2003) AIR A.P. 418 ) and ( Sri. Jagadamba Singh v. Smt. Kalawati Devi & Ors., (2016) 1 CalHN 357 ).Relying upon ( Seth LoonkaranSethiya & Ors. v. Mr. Ivan E. John & Ors., (1977) 1 SCC 379 ) learned senior advocate appearing for the defendant No. 1 has submitted that it is mandatory to dismiss the suit if the partnership firm is not registered. According to him, the Court has no discretion in that regard.

5. Learned Senior Advocate appearing for the defendant No. 1 has relied upon (1947-48) 52 CWN 15 (Guno Prosad Kundu v. Abhoy Hari Sreemani & Anr.) for the proposition that, the expression contract means the partnership agreement.

6. Learned Senior Advocate appearing for the defendant No. 1 has contended that, only the plaint has to be looked into for the purpose of considering an application under Order VII Rule 11 of the Code of Civil Procedure, 1908. Even the written statement cannot be looked into. Consideration of the contentions of the defendant is impermissible. He has relied upon ( Saleem Bhai & Ors v. State of Maharashtra & Ors., (2003) 1 SCC 557 ) and ( Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174 ) in this regard. Relying upon (In the matter of Abani Kanta Pal,1986 AIR Calcutta 134) and ( Sunderlal& Sons v. Yagendra Nath Singh & Anr., (1976) AIR Calcutta 471 ), learned Senior Advocate appearing for the defendant No. 1 has submitted that a plaint that is barred under Section 69 of the Act of 1932 is a void plaint. He has submitted that, the same view has been followed in (The A.P. Co-op. Wool Spinning Mills Ltd. &Anr. v.