MALHOTRA AND CO Vs. RAMESH MISTRI

JUDGEMENT

(1.) THIS petition for revision is directed against the order of the trial Court which reads thus:" the suit is allowed to be withdrawn but permission for filing a fresh suit on the same subject-matter is not granter because the suit has not been withdrawn on technical defects but due to wrong factual position. The parties are left to bear their own costs. The suit stands dismissed as withdrawn. " This order was passed on the statement of Mr. Rajinder Kumar Chhibaar, counsel for the plaintiff. The counsel's statement is in these terms : "i want to withdraw this suit with a permission to file fresh suit after the registration of the firm on te same subject-matter. "

(2.) IN view of this statement the proper order to pass was to dismiss the suit and not to pass the order which has been impugned. In fact, no suit by an unregistered firm is competent and the only course open to the Court was to dismiss the suit. It could not withhold the permission so far as the plaintiff is concerned debarring him from filing a fresh suit. Reference in this connection may be made to Krishen Lal Ram Lal v. Abdul Ghafur Khan, AIR 1935 Lah 893, wherein it was observed : "section 69 of the Partnership Act, 1932 says that no suit falling within its purview shall be instituted. It is the institution of the suit that is barred. Hence, an unregistered firm cannot file a suit nor can it after filing get the suit stayed till it gets itself registered. The suit, must be dismissed, but the dismissal of the suit will be no bar to a fresh suit after registration, if it is within time; for the present decision not being on merits, cannot obviously operate as res judicata. " To the same effect are the observations in Arunagiri Mudaliar In re. AIR 1936 Mad 697, Firm Mohan Singh Kishen Chand v. Firm Janki Dass Ram Parshad, AIR 1937 Lah 241 and Firm Sonlal Hansraj v. Sadashiv Dasaras, AIR 1937 Nag 146.

(3.) FOR the reasons recorded above, I vacate the order of the trial Court and in its place substitute the order simpliciter, namely that the plaintiff's suit is dismissed. The petition stands allowed to the extent indicated above. There will be no order as to costs. Order accordingly.