JUDGMENT

This first appeal has been filed by the appellant/plaintiff under Section 96 of CPC against the order dated 10.01.2013 passed in Civil Suit No.172-A/2012 (Ashoka Group through Partner Shankarlal Daswani Vs. Hariram and others) by IVth Additional District Judge, Jabalpur whereby respondents/defendant's application under Order 7 Rule 11(d) of CPC has been allowed and appellant's suit has been dismissed as barred in the light of Section 69 of Indian Partnership Act.

2. Learned counsel for the appellant/plaintiff submits that provisions of Section 69 of the Indian Partnership Act are not mandatory. Further, after referring to provisions of Order 7 Rule 11 of CPC and relying upon Shiv Developers through its Partner Sunilbhai Somabhai Ajmeri Vs. Aksharay Developers and Others, (AIR 2022 SC 772) and Shakti Bhog Food Industries Ltd. Vs. Central Bank of India and Anr., (AIR 2020 SC 2721), Bhavar Bai, it is urged that suit cannot be dismissed under Order 7 Rule 11 of CPC on the basis of Section 69(2) of Indian Partnership Act. Submissions advanced by learned counsel for the respondents has been dealt by Hon'ble Apex Court in Shiv Developers (supra)

3. It is also urged that presently partnership has been registered. Therefore, appellant's application under Order 41 Rule 27 of CPC be allowed and said documents be taken on record and case be remitted back to Trial Court for deciding the case afresh on merits. With respect to above, learned counsel for the appellant has referred and relied upon Sanjay Kumar Singh Vs. State of Jharkhand (AIR 2022 SC 1372), Mohan Kumar Vs. State of MP and others, [2017(3) MPLJ 300] and Collector and another Vs. Jujhar and others, vide order dated 17.04.2023 passed in SA No. 229/2018. On above grounds, it is submitted by learned counsel for the appellant that appeal filed by the appellant be allowed.

4. Learned counsel for the respondents, after referring to plaint avenrments especially para 1 of plaint as well as partnership deed, submits that partnership was constituted for the sole purpose of sale and purchase of land and buildings etc. After referring to partnership deed and plaint averments, it is also urged that present suit has been filed on behalf of partnership firm to enforce rights of the firm. Further, after referring to impugned order as well as Section 69 of Indian Partnership Act, it is submitted that as on the date filling of suit, partnership firm was unregistered therefore, present suit was barred under Section 69(2) of Indian Partnership Act because present suit has been filed for enforcement of right arising out of contract. With respect to above submissions, learned counsel for the respondents has relied upon Haldiram Bhujiawala and Another Vs. Anand Kumar Deepak Kumar and Another, [(2000) 3 SCC 250] and Shiv Developers (supra).

5. It also urged that as on the date of filing of the suit, plaintiff firm was unregistered, therefore, above defect cannot be cured by registering firm during pendency of present proceedings. With respect of above, learned counsel for the respondents has relied upon Delhi Development Authority Vs. Kochhar Constructions Work and Another, (1998) SCC 559. On above grounds, it is urged that learned trial Court has rightly dismissed appellant's suit under Order 7 Rule 11(d) of CPC, on the ground that it is barred by Section 69(2) of Indian Partnership Act. Hence, appellant's application under Order 41 Rule 27 of CPC cannot be allowed and case cannot be remitted back to trial Court. Hence, appeal filed by the appellant be dismissed.

6. I have heard learned counsel for the parties and perused and examined record of the case minutely and also decisions referred and relied upon by the parties in the light of their submissions.

7. In view of rival submissions of the parties, following issues/questions arise for determination before this court:- (i) Whether respondent’s application filed under Order 7 Rule 11(d)

of CPC is maintainable?

(ii) Whether appellant/plaintiff, in v