This is a revision application against the order of the City Judge, Jammu, dated 8-8-1959, and arises out of the following circumstances.

(2) M/s.- Khairati Lal and Sons plaintiffs instituted a suit for the recovery of Rs. 1,000 from M/s. Cold Storage and General Mills Ltd., Jammu on 15-4-1959. The plaintiff firm was not registered under the Partnership Act on the date when the suit was instituted. The defendants in their written statement pleaded that the plaintiffs suit could not proceed in view of the plaintiff firm not being registered on the date the plaint was filed. It appears that the plaintiff firm got the partnership registered on 30-5-1959, and it was averred by them that the firm had already been registered!. The question for consideration before the trial Court was whether the registration of the firm after it had filed the suit could cure the defect.

The learned trial Judge following a Full Bench decision of this Court reported as Ghulam Mohd. v. Ghulam Mohd., 7 J and K LR 120, held that the subsequent registration cured the defect and the suit was maintainable. Against that order the defendants came up in revision to this Court and the) case was put up for hearing before a Single Judge of this Court on 2-12-1959. In view of the conflict of decisions on this point the case was referred to the Full Bench for an authoritative pronouncement.

(3) It was argued that the view taken by the trial Court based on the Full Bench decision was not correct. Relying on Dwijendra Nath Singh v. Govinda Chandra. AIR 1953 Cal 497, Prithvi Singh v. Hasan Ali, AIR 1951 Bom 6 and AIR 1954 Punj 233 (sic) it was argued that the suit which was not maintainable by reason of non-compliance with S. 69 could not become maintainable at a later, stage by reason of subsequent registration. In the Full Bench judgment of this Court which was delivered! in 1946 reliance was placed on Radha Charan Saha v. Matilal Saha, 41 Cal WN 534 and Varadarajulu Naidu v. Rajamanika Mudaliar, AIR 1937 Mad 767 and it was held that if the firm was not registered on the date of the institution of the suit but the registration was effected during the pendency of the suit, the suit may be considered to have been instituted on the date when the firm was registered if it was not otherwise barred on that date.

(4) It appears that the later decisions of the Madras and Calcutta High Courts and of other High Court were not brought to the notice of their Lordships at that time. The cases relied upon by the Full Bench have been overruled subsequently by the decisions of the same High Courts. AIR 1937 Mad 767 is a Single Bench judgment by Horwill J. and in that case an unregistered firm had instituted a suit and during the course of the proceedings had registered itself in accordance with the Partnership Act.

On objection being raised that the firm was not registered on the date of the institution of the suit, the suit was dismissed though registration had taken place before the hearing. Horwill J. held that it would be most inequitable for the firm to have its suit dismissed and be forced to file another after paying fresh court-fee. The suit was. therefore, treated as instituted on the date when the firm was registered. This case was overruled by a Division Bench of the Madras High Court. Pannuchami Goundar v. Muthusami Goun-dar, AIR 1942 Mad 252 in which it was held that

"a suit is instituted when the plaint is filed in a Court of competent jurisdiction. The registration of the firm is a condition precedent to the right to institute the suit and the Court has no jurisdiction to proceed with the trial when the condition precedent has not been fulfilled. Registration after the filing of the suit cannot cure defect."

(5) A Single Bench of the Calcutta High Court, Mitter J., in 41 Cal WN 534 took the view that the suit ought not to have been dismissed merely on the ground of non-registration of the firm but ought to to have been deemed to have been instituted on the date