A suit by partners to enforce a right accrued to them as partners must be filed in the name of the firm and all the partners must join as parties to the suit.

Judgement

JUDGMENT :- The defendants are in appeal against the reversing judgment and decree of the learned District Judge of Koraput at Jeypore in a suit for recovery of the price of goods supplied.

2. The plaintiffs alleged that they had a shop at Koraput and the defendants were taking cloth on credit from time to time. A sum of Rs. 695.79 paise was due from the defendants by 20th of July, 1965. In spite of demand, the amount was not paid. Therefore, after notice, the suit was filed on 31st of October, 1966, claiming the principal sum together with interest.

3. The defendants took the stand that they had made certain credit purchases, but payments had been made and not only the plaintiffs dues were cleared, but some money was still owing to the defendants on account of excess payment. The suit was the outcome of malice at the instance of one Kesharichand Umedmal as the defendants started buying their requirments from one Pratapchand, a business adversary of Umedmal.

4. The learned Subordinate Judge dismissed the suit by holding that the suit was not maintainable as it was hit by Section 69 of the Indian Partnership Act.

5. Upon appeal by the plaintiffs, the learned District Judge by judgment dated 15th of July, 1970, framed an additional Issue to the following effect:-

"Is the plaintiffs firm a registered one and whether the suit is maintainable ?"

and required the learned Trial Judge to submit his finding on the new Issue after taking evidence. The learned Subordinate Judge found in favour of the plaintiffs on the additional issue. The lower appellate court thereupon proceeded to dispose of the appeal and came to hold that the plaintiffs were entitled to recover a sum of Rs. 299.54 paise and the suit was maintainable as the plaintiffs were a registered firm. This second appeal has been filed against the reversing decree of the lower appellate court.

6. At the commencement of the hearing, a preliminary objection was raised by the respondent s Counsel contending that a second appeal against the appellate judgment was not tenable in view of the bar provided under Section 102 of the Code of Civil Procedure. Mr. Sinha for the appellants concedes that the preliminary objection must prevail and makes a prayer that this second appeal may be converted into a Civil Revision saying that adequate court fees have already been paid. I think, that would be in the interests of justice. I accordingly direct that the second appeal shall be treated as a Civil Revision and shall be registered as such.

7. The only question that is raised by Mr. Sinha in this civil revision is that the bar under Section 69 of the Indian Partnership Act operates and the plaintiffs suit has to be dismissed. The plaint describes the plaintiffs in the following way:- "Trilokchand Premchand, aged 35 , and 25 years, sons of Sohanraj, merchants, residing at Koraput." The plaint has been verified by Premchand for Trilokchand Premehand. At the trial Trilokchand was examined as P. W. 1. He has stated:- "Premchand is my brother. Myself and my brother carry on business under the name Trilokchand and Premchand of which I am the manager..................... The cloth shop is our own shop and this shop is a partner of Kesarichand Umedmal at Jeypore who are cloth merchants of Jeypore. Umedmal is the managing partner of the firm of which we are partners. Each of we partners has got 4 annas share. Umedmal has also issued notices calling upon the defendants to pay up the dues. Umedmal also stays at Koraput. Kesrichand is the eldest brother and he is managing the shop at Jeypore and he is also a partner.......... The firm under the name and style Kesarichand Umedmal was existing at Jeypore prior to 1964 and a branch was opened at Koraput in 1964 and I am in charge of that branch............."

After the additional issue was raised, this witness was further examined and stated:- "We are four partners. A partnership deed was executed. We three brothers, namely myself, Kesarichand and Premchand