ORDER

This is the first appeal under Section 96 of CPC feeling aggrieved by the order dated 17-05-2001 in Civil Suit No. 76-B/94 by 12th Additional District Judge, Jabalpur whereby the plaint has been rejected under Order 7 Rule 1(d) of the CPC.

2. Facts in brief are that the appellant/plaintiff filed a civil suit against the defendant for recovery of Rs. 2, 47,795/- on 04-05-1993. When the suit was filed, the appellant/plaintiff was doing business in the name of "Premier Agency" as its sole Proprietor. Formerly 'Premier Agency' was a partnership firm constituted on 01-05-1985 and it was dissolved under deed of dissolution dated 23-03-1990 ( Annexure P-/1) under which the appellant/plaintiff has taken over all the assets and liabilities of the said firm. Since, then, he was doing as sole proprietor. The said partnership was not registered. 3. The defendant/respondent challenged the deed of dissolution and stated that it was not according to the Partnership Act, 1932. It further alleged that the firm was not registered as per the provisions of the Partnership Act, 1932. The suit was barred and liable to the dismissed with cost. 4. On 05-03-2001, the defendant/respondent filed an application under Order 7 Rule 11 of CPC claiming that the suit amount was claimed on the basis o f transaction with an unregistered partnership firm. Section 69 of the Partnership Act was attracted and the suit was liable to be dismissed. The plaintiff/appellant opposed the application and claimed dismissal of the application.

5. The trial Court rejected the plaint under Order 7 Rule 11 ( d) of CPC as barred by law. Feeling aggrieved by the order dated 17-05-2001, this appeal has been preferred on the ground that:-

(i) The Trial Court erred in holding that the suit was not for realization of the assets of the firm but, was for enforcement of the rights arising out of contract of a dissolved unregistered firm.

(ii) The trial Court erred in not appreciating that debt due to firm is also an asset of the firm and realization of debt is not enforcement of any contract.

(iii) The Court below erred in not taking note of sub-Section 3 of Section 69 of the Partnership Act, 1932 which says that provisions of Sub- Sections 1 and 2 of Section 69 shall not affect any right or power to realize the property of a dissolved firm. Obviously, since money due to the firm is its property, the bar of Section 69(1) and (2) does not apply. Consequently, the rejection of plaint for reasons given in the impugned order is erroneous and not sustainable.

(iv) The court below further erred in not considering that the entire amount due from defendant/respondent was not of the unregistered firm.

Therefore, even if the bar of Section 69(1) and (2) applied, the court below ought to have permitted the parties to lead evidence and not to reject the plaint on a disputable proposition.

(v) When issues had been framed and the case was ripe for evidence, the court below erred in rejecting the plaint when the matter needed enquiry on the question whether this is a case of realization of property of a dissolved firm or enforcement of terms of contract of an unregistered firm.

(vi) The Court below while applying the Order 7 Rule 11 CPC ought to have take into consideration only the plaint allegations as they are not to have reasoned with them to find fault.

6 . No one appeared for respondent and the appeal is heard ex parte against the respondent under Order 41 Rule 17(2) of CPC.

7. Perused the record. 8. The pivotal issue in this case is whether the matter of appellant/plaintiff is covered under Section 69(3) (a) of the Indian Partnership Act, 1932.

9 . For convenience, Sub-Section (1), (2) and (3) of Section 69 the Indian Partnership Act, 1932 is being referred:-

"Section.69. EFFECT OF NON-REGISTRATION. (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on a behalf of any persons suing as a partne