The impleadment of a new plaintiff after the limitation period can lead to the dismissal of the suit.

JUDGMENT :

A.K. Rath, J.

The legal heirs of the defendant are the appellants against the reversing judgment.

2. Plaintiff-Respondent no.1 instituted the suit for realisation of 4841.08 ps. with pendente lite and future interest. Case of the plaintiff is that it is a registered firm. The firm deals in mohua flower, jaggery and other commodities. On 30.1.1963, the defendant opened one mutual and current account with the plaintiff-firm and used to take goods on credit and deposit money according to his convenience. The account was maintained by the plaintiff in due course of business. On 3.2.1968, defendant purchased mohua flower amounting to Rs. 432.28 ps. He deposited an amount of Rs. 474/- on 13.3.1968. Thereafter, he stopped payment. An amount of Rs. 4131.03 ps. was outstanding against the defendant as on 30.3.1968. When all the persuasions made by the plaintiff to clear up the outstanding dues ended in a fiasco, he filed the suit.

3. Defendant filed a written statement pleading, inter alia, that the plaintiff-firm is not registered under the Indian Partnership Act. The suit is barred under Sec.69 of the Partnership Act. There was no outstanding due against him.

4. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary. On an anatomy of pleadings and evidence on record, learned trial court dismissed the suit holding, inter alia, that the firm was an unregistered one. Sec. 69 of the Partnership Act is a bar for institution of suit by an unregistered firm. The suit is not maintainable. Aggrieved by and dissatisfied with the judgment and decree of the learned trial court, the plaintiff filed an appeal before the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned Addl. District Judge, Berhampur and re-numbered as M.A No.7/88 (M.A No.20/78 GDC). During pendency of the appeal, the plaintiff filed a petition under Order 1 Rule 10 CPC to implead Harihar Patra, managing partner of the firm as the plaintiff. The defendant objected to the petition. Learned appellate court rejected the petition for impleadment on 10.3.1981. Against the said order, plaintiff filed Civil Revision No.273 of 1981 before this Court. The petition was allowed on 26.06.1989, whereafter Harihar Patra was impleaded as plaintiff no.2 in his individual capacity on 26.06.1989. Learned appellate court came to hold that Harihar Patra, managing partner of plaintiff no.1-firm, was impleaded as plaintiff no.2 and as such, he is entitled to the relief.

The finding with regard to genuineness of the claim of the plaintiff has not been assailed by the defendant by filing cross-objection. The order allowing impleadment has attained finality and as such, binding on the defendant. The suit is not barred by limitation. Held so, it allowed the appeal. It is apt to state here that during pendency of the first appeal, the original defendant died; whereafter his legal heirs and successors have been substituted.

5. The second appeal was admitted on the following substantial question of law.

“Whether inclusion of plaintiff no.2 in the year 1989 would make the claim barred by limitation.”

6. Heard Mr. Buddhiram Das on behalf of Mr. N.C. Pati, learned counsel for the appellants. None appeared for the respondents.

7. Mr. Das, learned counsel for the appellants submitted that initially plaintiff-respondent no.1-firm instituted the suit for realisation of money. It was an unregistered firm. Sec.69(2) of the Indian Partnership Act is a bar to institute a suit by an unregistered firm. The application to implead Harihar Patra was allowed by this Court on 26.06.1989 in Civil Revision No.273 of 1981. The suit is barred by limitation. To buttress the submission, he placed reliance on the decision of the apex Court in the case of Ramalingam Chettiar v. P.K. Pattabiraman and another, (2001) AIR SC 1185.

8. Before adverting to the contentions raised by the learned counsel for the appellants, it i