” Heard.

2. The appellant/defendant has preferred this first appeal assailing the judgment and money decree dated 05.02.1993 passed by learned District Judge, Balotra, in Civil Original Suit No.35/84- Firm Nemichand & Co. v. Jale Khan, whereby the suit filed by the plaintiff was decreed to the extent of Rs.10,557.79 with interest and costs. The respondent/plaintiff filed suit under Order 37 of CPC, 1908, on account of non-payment of sum on account of supply/sale of clothes to the defendant in the regular course of business.

3. On the basis of documentary as well as oral evidence produced by the plaintiff, the suit has been decreed to the aforesaid extent. The Issue No.1 regarding registration of plaintiff firm was also decided against the defendant and clearly noticing, the learned trial court held that the defendant has not raised any specific objection about the said issue either in the written statement or in the oral evidence that the plaintiff firm was not registered and, therefore, the suit was hit by Section 69 (2) of the Indian Partnership Act, 1932.

4. Mr. Manish Patel, learned counsel for the appellant/defendant relying upon the decision of this Court in the case of M/s. Sohanlal Basant Kumar v. Umraomal Chopra reported in 1985 (1) WLN 791 and the decision of the Hon” ble Supreme Court in the case of M/s. Shreeram Finance Corporation v. Yasin Khan & Ors. reported in AIR 1989 SC 1769 submitted that the plaint was signed by one Sh. Nemichand, claiming to be the partner of the firm M/s. Nemichand & Company, but actually he was made partner of the said firm only after the date of institution of the suit. The suit was instituted on 04.09.1984 whereas the said Sh. Nemichand entered in the said partnership firm w.e.f. 29.12.1984. He, therefore, submitted that suit itself was not maintainable and the present first appeal of the defendant deserves to be allowed.

5. On the other hand, Mr. S.C. Maloo, learned counsel appearing on behalf of respondent/plaintiff argued that the said partner Sh. Nemichand, was entered in the said partnership firm w.e.f. 16.11.1982 and on 29.12.1984 only an intimation was sent to the Registrar of the Firms under Section 63 of the Act of 1932 for making necessary entry in the Register of the Firms, maintained by the Registrar of the Firms, which entry was made on 10.01.1985, clearly stipulating therein that the said person, namely, Sh. Nemichand, has entered in the partnership firm with effect from 16.11.1982. The relevant and extract portion of the document (Exhibit-2) dated 10.01.1985 to this effect is quoted herein below for ready reference: -

10.1.185 2. Notice E u/S. 63 By partners

Dt. 29.12.84.

The constitution of the firm has been changed due to retirement of Shri Champalal and Shri Ganpatlal w.e.f. 16.11.82 and admission of Sh. Nemichand S/o Ramchandraji age 35 years R/o Rughji Ki Pol, Balotra w.e.f. 16.11.82.

Sd/

Registrar of Firms

Rajasthan Jaipur.'

6. He also submitted that even in the income tax assessment of the said firm M/s. Nemichand & Co. has been assessed including said Sh. Nemichand, as one of the partner with 25% of share of profit. He also urged that no defence was raised in this regard by the defendant in his written statement and the only contention which was raised was that the firm was not registered, which was proved by the plaintiff to be a registered firm right from 1981. The Exhibit-2 clearly shows the composition of said partnership firm w.e.f. 07.11.1981 of S/Sh. Champalal, Jasram, Ganpatlal, Smt. Bhanwari Devi, Smt. Leela Devi and w.e.f. 16.11.1982, the constitution of the firm changed as S/Sh. Champalal and Ganpatlal retired from the said partnership firm and Sh. Nemichand, was admitted in the said firm w.e.f. 16.11.1982. Thus, it is clear that on the date of filing of the suit Sh. Nemichand was partner of the plaintiff firm much prior from 16.11.1982 and merely because the entry in this regard was made by the Registrar of the Firm at a later point of time, as the intim