BUHARI TRADING CO Vs. STAR METAL CO

JUDGEMENT

(1.) This is an appeal against the order of the learned Judge, Shanmukham J. trying the following two issues as preliminary issues and giving a finding thereon 1. Is the suit not maintainable in view of the dismissal of C. S. 548 of 1981?

(2.) Is the suit liable to be dismissed as the cause of action does not arise under Admiralty Jurisdiction of the court? On the first issue, the learned Judge held against the defendant and found that the suit is maintainable. On the second issue, though the learned Judge agreed with the defendant that the cause of action does not arise under the Admiralty Jurisdiction of this court, treated the suit as one filed under the Ordinary Original Jurisdiction of this court and in that view the suit was held not liable to be dismissed. It is against this finding that the defendant has preferred this appeal.

(3.) Before we deal with the rival contentions of law, we will clear one doubt as to whether the earlier suit was withdrawn on the ground that it was one filed by an unregistered firm and may not be maintainable. We have already noticed that the earlier suit was filed on 24-11-1981, by the plaintiff as an unregistered firm. Later, only after the counter-affidavit was filed in the application for interim orders the plaintiff appears to have applied for registration on 28-111981, and the firm was registered on 30-11-1981. After he got the registration, he withdrew the earlier suit and filed a fresh suit on the same day. That the suit was filed on the same day is a very relevant consideration. Again, when the present suit was filed, the office returned the papers asking as to how the present suit is maintainable in view of the filing of the earlier suit. While representing, the learned counsel raised the plea that the earlier suit was one filed by an unregistered firm and that therefore no maintainable and in those circumstances, he withdrew the earlier suit and filed the present suit and that therefore the suit is maintainable. It may be mentioned that this was even before the written statement was filed. As already stated, in the counter- affidavit filed in the interim application in Appln. No. 4126 of 1981, the defendant raised the plea of bar of suit by reason of the withdrawal of the earlier suit. In reply to the same, the plaintiff contended that he withdrew the earlier suit because it was considered that a suit by an unregistered firm was not maintainable and in fact, according to the plaintiff, the old firm had no legal entity and it shall be deemed to have been born only when it was registered under the Partnership Act. In those circumstances, there could be no doubt that the plaintiff in this case withdrew the earlier suit because of the possible objection the suit was not maintainable by an unregistered firm. That is how the learned Judge also proceeded in considering the first issue and accordingly we have to proceed also on that basis and not ass if the earlier suit was not pressed and therefore was dismissed. Under O. XXIII, R. 1, C.P.C., the plaintiff is entitled, at any stage of the suit, to abandon his suit or abandon a part of his claim for which purpose an application may be filed. If the court is satisfied that the suit must fail for some formal defect or that there was sufficient ground for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. If the plaintiff withdraws without such permission of the court to file a fresh suit, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. In this case, no leave has been prayed for by the plaintiff for instituting a fresh suit and therefore, the question for consideration is, whether the plaintiff shall be deemed to have preferred an earlier suit and withdrawn which will preclude him from instituting a fresh suit in respect of the subject-matter or such part of the claim. A similar question has come up for consideration before courts in different form. In the Arunagiri Mudaliar, AIR 1936 Mad 697 while considering a revision petition against the permission granted by the court below to an unregistered firm to file a fresh suit subsequently after registration, the learned Judge observed, the withdrawal of a suit by partners who have not been registered ass a firm is no bar to a suit filed on the same cause of action by the same persons when and if they get themselves registered ass a firm under the Partnership Act. For the latter suit would be technically by a different plaintiff. The learned Judge further observed :-