MSPL LIMITED Vs. S B MINERALS

JUDGEMENT

(1.) THIS Civil Revision Petition under section 115 of the Code of Civil Procedure filed by the defendant in OS no. 174 of 2003 pending on the file of the Addl. Civil Judge [sr. Dn. J Hospet, is directed against the order dated 24-9-2007 passed by the learned Trial judge answering the preliminary issue which was framed as additional issue No. 1 and which reads as under :

(2.) IT is aggrieved by this order contending, inter alia, that the very suit filed by the plaintiff-firm represented by a partner whose name did not figure in the register of the Registrar of Firms, as a partner of the firm on the day when the suit was" filed, the present revision petition on the premise that the suit was bad in law; that the suit by a person as a partner whose name did not figure as a partner of the firm as registered with the registrar of firms is an ill laid suit, could not be entertained and cannot be proceeded in law and therefore the trial Court should have held the answer against the plaintiff and should have dismissed the suit.

(3.) SRI Yoganarasimha, learned Senior Counsel appearing for the petitioner has vehemently urged that it is an admitted fact that the name of the person who laid the suit as a partner of the firm and who had signed the plaint as a partner did not figure on the date of filing of the suit i. e. , as on 4-12-2003; that even in terms of the order of the learned trial Judge, the name of this partner was entered in the register of Registrar of firms as a partner only on 21-2-2004 and therefore the suit itself was defective; that the defect was a material defect going to the root of the matter and the learned trial Judge having answered this question against the defendant and not on a proper appreciation of the provisions of law, particularly the provisions of Section 69 (2) of the Indian Partnership Act, 1932 or the principle emanating from this section and therefore has committed a material irregularity in passing the impugned order and the order calls for being revised within the scope of Section 115 of the Code of civil Procedure and for such purpose, the present petition is filed.