SPINTEX CORPORATION Vs. DHARMENDRA KUMAR RATHI

JUDGEMENT

(1.) THIS appeal is directed against the order dated 13th July, 2007 passed by the Learned Single Judge dismissing the Review Application filed by the appellant. The appellant/plaintiff filed a suit for recovery under a contract. After summons were issued and the same were served, the defendant/respondent filed a written statement contending inter alia that there was no averment in the plaint that the plaintiff was a registered partnership firm. It was also not stated in the plaint as to who were the registered partners thereof. Issues in the suit were framed as far back as 2. 12. 2004

(2.) IN view of the pleadings of the parties and particularly the objections taken in the written statement with regard to the maintainability of the suit, an issue was also framed being issue No. 1 to the effect as to whether the suit was not maintainable in view of the provisions of Section 69 of partnership Act. An order was also passed by the learned Single Judge to treat the aforesaid issue No. 1 as a preliminary issue. The case was listed before the court for hearing arguments on issue No. 1 and in fact on 28. 11. 2005, the same issue was argued. However, an order was also recorded on the same date that the counsel for the plaintiff had stated that he would like to move an appropriate application. IA No. 1359/2006 was filed seeking amendment of the plaint by way of incorporating the averments that the plaintiff was a registered partnership firm. The said amendment was allowed on 07. 08. 2006. But while doing so the cost was imposed for an amount of Rs. 25,000/- which was to be paid within two weeks. Despite passing of the said order, cost was not paid even on 6. 11. 2006 when the matter was again directed to be renotified on 20. 12. 2006. When the matter was listed on 20. 12. 2006 counsel for the parties appeared before the court. Even on the said date, cost was not paid which was recored by the learned single Judge. It was specifically mentioned by him that since cost was imposed while allowing the amendment and since the same has not been paid, the plaint could not be amended. In that view of the matter it was held that since the suit seeks a relief pertaining to the said contract between the plaintiff and the defendant and noting that issue No. 1 which was framed on 02. 12. 2004, the suit was dismissed as not maintainable being hit by provision of section 69 of the Partnership Act.

(3.) SEEKING review of the aforesaid order, the aforesaid application was filed by the appellant stating that he is willing to pay the cost. The learned Single Judge, however, held that there is no error apparent in the order dated 20. 12. 2006 and, therefore, there is no ground for giving any further opportunity to the appellant in terms of the prayer made. Consequently the application was dismissed. The said findings are challenged before us by the appellant by filing this appeal.