THAWARIYA Vs. FIRM RAJESH KUMAR HEERA LAL

JUDGEMENT

(1.) THIS civil second appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 19. 7. 1989 passed by the learned Addl. District & Sessions Judge, Kishangarhbas (Alwar) whereby the appeal No. 25/1987 has been dismissed up-holding the judgment and decree dated 24. 2. 1987 of the learned Civil Judge, Kishangarhbas in Civil Original Suit No. 73/1985 vide which the suit of the plaintiff-respondent has been decreed.

(2.) BRIEFLY stated, the relevant facts are that the plaintiff- respondent filed a civil original suit in the aforesaid court on 12. 1. 1981 inter-alia pleading that the plaintiff firm is a registered partnership firm under the Indian Partnership act, 1932 (in short `the Act') and it has three partners namely Hazari Lal, Babu Lal and Smt. Shanti Devi. It carries on business of commission agent in Khairthal town. The defendant appellant took a loan of Rs. 4,500/- from the plaintiff-firm on 20. 2. 1978, but neither repaid the said loan nor brought `gwar' and other grains at the shop of the plaintiff-respondent firm for sale. He was given notice, but he neither gave any reply to the notice nor repaid the aforesaid loan amount. So, the suit out of which this appeal has arisen was filed. The defendant appellant contested the suit denying all the averments made in the plaint and claiming Rs. 1,000/- as special costs. the trial court framed five issues including the issue No. 2 pertaining to the registration of the plaintiff firm under the Act. The trial Court after taking evidence of both the parties and affording opportunity of hearing, decreed the suit. The appeal preferred from the said judgment and decree was dismissed as indicated above. Hence, the instant second appeal which was admitted on 26. 3. 1991 on the following substantial questions of law. " 1. Whether the suit filed by the respondent-plaintiff firm could be decreed without the finding that the respondent firm was registered on the date of filing of the suit and the partner through whom the suit was filed was one of its registered partners? 2. Whether the above said question cannot be raised by the respondent when he had not taken this objection before the courts below?"

(3.) IT has been held in M/s. Jammu Cold Storage and General Mills Ltd. vs. M/s. Khairati Lal and Sons (supra) the provisions of Sub-section (2) of Section 69 of the Act are mandatory. The registration of the firm is a condition precedent to the right to institute the suit. If on the date of institution of the suit the firm is not registered, the subsequent registration cannot validate the suit. The only option left to the court is to dismiss it.