Dr. M. K. Sharma, J.

( 1 ) THE present revision petition is directed against the order dated 16. 1. 98 passed by the Additional District Judge in Suit No. 691/93 allowing the application filed by the plaintiff under Order 6 Rule 17 and dismissing the application of the defendant under order 7 Rule 11 of the Code of Civil Procedure. The respondent herein as plaintiff filed a suit for recovery of Rs. 1,52. 850. 00. The said suit was registered as Suit No. 691/93. The aforesaid suit was filed by the respondent-plaintiff claiming the respondent firm to be a registered partnership firm and the plaint was signed, verified and instituted by Shri Parshottam Garg claiming himself to be a registered partner of the respondent-plaintiff firm. The Summons were issued in the aforesaid suit on service of which the petitioners-defendants entered appearance and filed a written statement taking preliminary objection and contending, inter alia, that the suit is not legally competent as the plaintiff is an unregistered firm and, therefore, the suit is not maintainable in view of the provisions of Section 69 of the Partnership Act. In the replication also the plaintiff reiterated the stand that the plaintiff is a Registered partnership firm and is duly registered under the Provisions of Indian Partnership Act. It was stated in the said replication filed by the respondent-plaintiff that the certified copy of the Form-A to prove the registration of the partnership is not available with the plaintiff and that the plaintiff has applied to the Registrar of Firms for issuance of certified copy of Forma-A.

( 2 ) IN view of the pleadings of the parties an issue was also framed to the effect as to whether the plaintiff is a partnership firm and registered under the India Partnership Act. and whether the present suit is instituted by a duly authorised person. The suit was listed before the trial court for recording evidence of the respondent-plaintiff. Shri Purshottam Garg appeared as one of the witnesses of the plaintiff and he deposed on oath that the respondent-plaintiff firm is a registered partnership firm and that he is one of the registered partner. However, during the course of cross-examination said Shri Purshottam Garg, however, stated that he is the Sole Proprietor of the plaintiff firm since 1. 4. 1993.

( 3 ) SUBSEQUENT thereto the petitioner-defendant filed an application under Order 7 Rule 11 of the Code of Civil Procedure seeking dismissal of the suit under the provisions of Section 69 of the Partnership Act in view of the statement of Shri Purshottam Garg and also in view of the documents filed on record. The respondent-plaintiff also filed an application under Order 6 Rule 17 of the Code of Civil Procedure seeking to amend the plaint so as to plead the status of proprietorship concern of the respondent on the date of the filing of the suit instead that of a registered partnership firm. Both the aforesaid applications were contested by the respective parties and arguments were heard by the Additional District Judge and by order dated 16. 1. 98 the application under Order 6 Rule 17 of the Code of Civil procedure was allowed and consequently the application under Order 7 Rule 11 Civil Procedure Code was dismissed.

( 4 ) COUNSEL for the petitioner submitted that the suit instituted by an unregistered partnership firm is barred under the Provisions of Section 69 of the Partnership Act and, therefore, the suit was not properly instituted and should have been dismissed on the basis of the application filled by the petitioner under Order 7 Rule 11 of the Code of Civil Procedure. He further submitted that Shri Purshottam Garg who filed the present suit has admitted that there was no registration of the plaintiff firm on the date of filing of the suit although in the plaint and the replication filed by him he has reiterated that the plaintiff firm is a registered partnership firm.

( 5 ) LEARNED Counsel appearing for the respondent, however, submitted

Click Here to Read the rest of this document