Registration of a firm is a condition precedent to the right to institute a suit, and subsequent registration does not cure the defect of non-registration.

Alfred Henry Lionel Leach, C.J.

1. Section 69(2) of the Partnership Act states that no suit to enforce a right arising from a contract shall be instituted in a Court by or on behalf of a firm against a third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. The question which arises in this petition is whether the registration of a firm after it has filed a suit can cure the defect.

2. In this case an unregistered partnership instituted a Small Cause suit in the Court of the District Munsif of Palni. It had applied for registration before filing the plaint, but the application had not been granted. In fact it was not granted until over a month had elapsed after the filing of the plaint. In these circumstances the District Munsif dismissed the suit with costs. The reported cases disclose a difference of opinion, but the majority of the judgments are to the effect that subsequent registration of the firm does not entitle the Court to proceed with the suit and that the only course open to it is to dismiss it.

3. The question has been considered on different occasions by four Judges of this Court, namely, by Menon, J., in Subramania Mudaliar v. The East Asiatic Co., Ltd. AIR1936Mad991 , Stodart, J., in Firm of Syed Ibrahim Sahib v. Gurulinga Aiyar AIR1938Mad185 , Horwill, J., in Varadarajulu Naidu and Kuppuswami Naidu & Co. v. Rajamanicka Mudaliar AIR1937Mad4767 and Venkataramana Rao, J., in Girdharilal Son & Co. v. Kappini Gowder AIR1938Mad688 . Menon, Stodart and Venkataramana Rao, JJ., formed the opinion that subsequent registration did not remedy the defect. On the other hand Horwill, J., held that it did. Menon, Stodart and Venkataramana Rao, JJ., considered that the wording of the section compelled the Court to dismiss a suit filed by an unregistered firm. Venkataramana Rao, J., in addition to relying on the wording of the section drew attention to the fact that the Privy Council in Bhagchand Dagadusa v. Secretary of State for India in Council (1927) S3 M L.J. 81 :1927 L.R. 54 IndAp 338 : I.L.R. 51 Bom. 725 had pointed out that Section 80 of the Civil Procedure Code, is explicit and mandatory. Section 80, Civil Procedure Code, has very much in common with Section 69 of the Partnership Act. It says that no suit shall be instituted against the Secretary of State for India in Council, or against a public officer for an act purporting to be done by him in his official capacity, until the expiration of two months next after notice in writing has been given. The Privy Council also observed that Section 80 imposes a statutory and unqualified obligation upon the Court, and Section 69 (2) of the Partnership Act does the same. Venkataramana Rao, J., relied further on the decisions of this Court with regard to Section 28 (2) of the Provincial Insolvency Act. That section prevents a suit being filed against an insolvent without the leave of the Insolvency Court, and in Ghouse Khan v. Bala Subba Rowther AIR1927Mad925 and Davood Mohideen Rowther v. Sahabdeen Sahib AIR1937Mad667 , this Court held that a subsequent leave would not cure the initial defect and validate the institution of a suit.

4. In expressing the contrary opinion Horwill, J., in Varadarajulu Naidu & Kuppuswami Naidu & Co. v. Rajamanicka Mudaliar AIR1937Mad4767 observed:

It is a well-established principle that the Court can take notice of events that happen subsequent to the filing of the suit and that any irregularities or deficiencies in the cause of action that may exist on the date of the filing of the plaint can be overlooked if on some date subsequent to the filing of the plaint and before the suit comes up for trial those irregularities or deficiencies arc rectified by the plaintiff or by process of law.

Whatever may be the principle which applies to the rectification of irregularities and deficiencies in the cause of action we are of the opinion that it cannot be applied here.

5. The c