S PRAKASHCHAND Vs. SHA HARAKCHAND MISRIMULL

JUDGEMENT

(1.) The defendant is the appellant. The plaintiff has filed a suit for recovery of amount in O. S. No. 7968 of 1986 before the VII Asst. Judge, City Civil Court, Madras, which was dismissed. As against the same the plaintiffs have filed an appeal in A.S. No. 155 of 1989 before the VIII Additional City Civil Judge, Madras which was allowed. Aggrieved by the judgment and decree passed by the first appellate Court this second appeal has been filed.

(2.) At the time of admission of this second appeal, the below mentioned substantial questions of law are framed :- (i) Whether the incorporation of the names of some of the partners of the plaintiffs firm in the Register of Firms after the institution of the suit, when the names did not find a place at the time of institution of the suit, could cure the defect and save it from dismissal under Section 69 (2) of the Indian Partnership Act, 1952 as amended ? (ii) Whether the Court below is not bound by the unreported judgment of this Honourable Court dated 27-9-1983 in C.S. Nos. 20 and 21 of 1982 and the decision of the Supreme Court in AIR 1989 SC 1769 (iii) Whether the Court below was right in applying the ratio reported in (1989) I Mad LW Weekly 405 to the present case ? (iv) Whether the lower appellate Court is right in putting the case of surrender pleaded by the plaintiffs against the defendant ?

(3.) The trial Court, though dismissed the suit, unequivocally found that the defendant is liable to pay the suit amount of Rs.20,000/- to the plaintiff, as against the same, the defendant has n ot filed any appeal, hence the fourth substantial question of law does not arise and answered accordingly. The trial Court however dismissed the suit on the ground that the names of the plaintiffs 3 and 4, who are partners of the 1st plaintiff firm did not find place in the register of firms on the date of institution of the suit and the incorporation of the name of the said two partners in the register of firms pending suit would not cure the defect. The First Appellate Court, after scrutiny of Ex. A9 and other documentary and oral evidence allowed the appeal by holding that the said two partners joined the firm as early as 22-10-1979, pending suit, their names were incorporated in the Register of Firms which would not invalidate the suit.