A suit by an unregistered firm for a right that accrued before the Partnership Act came into force is not barred by Section 69 of the Act, as it is saved by the provisions of Section 74.

K. K. SHARMA, J.

( 1 ) THE plaintiffs, Firm Hanuman Bux Rama Kishan and Surajmal filed a suit for recovery of Rs. 254/- against Gulab Chand petitioner in the Court of the learned Civil Judge, Sambhar, on 7-2-1951, on the basis of an entry in the Rokar Ex. P. 1 of the respondent firm.

( 2 ) THE defendant denied the execution of Ex. P. 1, and also pleaded that the plaintiff firm having not been registered, it was not entitled to bring a suit by virtue of Section 69 of the Indian Partnership Act (hereinafter to be referred to as the Act ).

( 3 ) CERTAIN issues were framed, and the issue regarding the non-maintainability of the suit by virtue of Section 69 of the Act was decided first. The learned Civil judge by his order dated 8-10-1952, decided that the suit was maintainable. He further decided the remaining issues, and ultimately decreed the plaintiffs suit in toto by the judgment dated 15-1-1953.

( 4 ) THE defendant went in appeal, and the learned District Judge, Jaipur District, by his judgment dated 27-3-1954, allowed the appeal in part, and modified the decree of the first court only in this respect that Rs. 54/-on account of interest were disallowed, and the decree was given only for the recovery of Rs. 200/ -. The defendant has come in revision to this Court against the above decree of the learned District Judge.

( 5 ) I have heard Shri K. B. Saksena On behalf of the applicant and Shri S. N. Agrawal on behalf of the plaintiffs opposite parties. Two points emerge for decision in this revision. They are as follows: 1. Whether the suit was barred by the provisions of Section 69 of the partnership Act? 2. Whether the Court of first instance was not justified in closing the evidence of the defendant on the 13th of January, 1953?

( 6 ) I may take up point No. 2 first. It has been argued by learned counsel for the applicant that on 8-10-1952, the learned Civil Judge had made an order that the plaintiffs evidence would be recorded on the 13th of January, 1953. Later on, somehow the word "muddai" (plaintiff) was struck off, and in its place the word "muddayalah" (defendant) was substituted. It was argued that the defendant could have no knowledge that the learned Court had changed its mood afterwards, and ordered that in place of the plaintiffs evidence, the evidence of the defendant would be recorded on 13-1-1953. It was argued that under the circumstances an opportunity should be given to the defendant to produce his evidence, and the suit should be remanded.

( 7 ) ON behalf of the opposite parties it has been argued that the plaintiffs evidence had in fact concluded long before the 8th of October, 1952, and that on 6-10 1951, it had been recorded in the order sheet that the plaintiffs evidence was closed, and 27-11-1951 had been fixed for the evidence of the defendant. It was argued that thereafter the case was adjourned on several dates, because it was submitted that the Court should give its decision on the point of the maintainability of the suit first. After the decision was given on the said issue on the 8th of October, 1952, the Court made an order for the production of the evidence of the defendant on 13-1-1953, and it was only by mistake of pen that in the first instance the word "plaintiff" had been written in place of the word "defendant", but immediately the mistake was corrected. It was argued that when the case was taken up on the 13th of January, 1953, counsel for the defendant was present, but no submission was made that the defendant had been under a misapprehension that the plaintiffs evidence would be recorded on that date, and, therefore, time should be given for production of the defendants evidence. It was argued that it was only by way of an afterthought that in the first appellate Court this point was raised.

( 8 ) I have considered the arguments of both learned counsel on this point. It is quite clear from a perusal of the order sheet of the first Court that the plaintiffs evidence had bee