KARNI KUMAR KHATRI Vs. ASSAM MOTOR FINANCE COMPANY

JUDGEMENT

(1.) NONE appears for the opposite party. Heard Learned Counsel Mr. T.C. Khatri on behalf of the defendant -petitioner. The defendant petitioner impugned the order, dated 7.12.1985 passed by the Assistant District Judge No. 1 Gauhati in Title Suit No. 57 of 1984 dismissing the suit on withdrawal with liberty to the plaintiff to institute a fresh suit on the same cause of action.

(2.) LEARNED Counsel Mr. Khatri submits that the suit of the opposite party plaintiff was defective ab initio for non -registration of the plaintiff firm and so, the defect alleged in the withdrawal application was not a formal defect for granting liberty to institute fresh suit.

(3.) THE plaintiffs -firm was not registered under Section 59 of the Partnership Act, so, it suffered from legal disability to enforce right arising from the contract stated in the plaint to institute a suit against the petitioner defendant by operation of Section 69(2) of the Partnership Act. The defect in the suit had effected the merit of the suit. Non -registration of a partnership firm is not a formal defect, but it is a defect affecting the merit of the suit at the root and so the liberty to institute a fresh suit on the same cause of action under Order XXIII Rule 1(3)(a), cannot be granted.