1. Defendant in O.S No. 1293 of 1984 on the file of II Additional Subordinate Judge, Tiruchirapalli, is the petitioner. Plaintiff is the sole respondent. Plaintiff filed the suit based on equitable mortgage and for other reliefs and at the stage when the defendant was examined as D.W he filed 1.A No. 466 of 1987 under Order 23 rule 1(3) and S. 151 C.P Code, seeking permission to withdraw the suit with liberty to file a fresh suit in respect of the subject matter of the present suit. The suit was filed by Messrs. R.S.S Vashtrad and Co, through one of its partners M.M Nalavad. He had sworn to before Court that he had filed Ex.A 2' partnership deed to show that he is a partner of the plaintiff from even prior to 10-1-1983, but however, this fact was not intimated to the Registrar of Firms by the Auditor of the firm, and that entry has been made in the Register only during the pendency of the suits and therefore, it being a formal defect, which would not go into the root of the matter, he had been advised to file a fresh suit, and, therefore, he sought for permission to withdraw the suit, with liberty to file a fresh suit.
2. This was opposed by defendant claim ing that it is only after cross-examination of the plaintiff, application had been made to include the name of Mr. Nalavad as a partner on 22-5-1987, and accordingly registered by the Registrar of firms, and that on the date of suit, he was not a partner, and there fore, had no right to file the suit and hence it is non-est in the eye of law.
3. The Court below held that the suit as filed is not void, and that it would be proper to grant the relief as prayed for and directed payment of Rs. 200. It is against the said order, this revision petition is filed.
4. The sole point which arises for consideration is, whether the non-compliance of the requirements of S. 69(2) of the Indian Partnership Act is a formal defect or its requirement is mandatory, and in its absence, a suit filed in this manner is a void suit.
5. Learned counsel Mr. E. Padmanabhan, would straightway rely upon the decision in Loonkaran Sethi a v. Ivan N. John A.I.R 1977 S.C 336. in which dealing with the scope of S. 69 of the Act, it was held that it is mandatory in character that a partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract within the ambit of S. 69.
6. In the matter of Abani Kantapal2, a Division Bench in dealing with the scope of the section held that if a firm is not registered, excepting in a suit as contemplated under S. 69(I) of the Act, the Court will have no jurisdiction to entertain a suit in violation of S. 69(1). It further added:.
“… …In other words, the plaint that has been filed by the plaintiff will be considered a void plaint, if it contravenes the provisions of sub-sec(1) and (2) of S. 89 of the Partnership Act “
A Division Bench of the same Court in an earlier decision in Ram Kumar Sha Chandrai, a firm v. Dominion of India A.I.R 1977 Cal. 37., held that if the name of one person who was partner on date of suit is not shown in the register then the suit as filed is not maintainable. A Division Bench in Bank of Root hat tuku lam v. Thomas A.I.R 1955 T.C 155. held:
“It is necessary not only that the firm should be registered, but the person suing must be shown as a partner in the firm. And when it is found that on the date when the plaint is filed the second part of this condition has not been carried out then S. 69(2) is not complied The registration after the institution of the suit cannot cure the defect of nonregistration before the date of suit.”
7. A Division Bench of this Court in Buhari Trading Co. v. Star Metal Co. 96 LW. 20=A.IR 1983 Mad. 150., in dealing with the dismissal of a suit which was sought to be withdrawn on the grouud that the plaintiff therein was an unregistered firm, held that it would not be a bar to file a fresh suit, on the same cause of action after the firm gets registered, for doing that, no permission is needed. This decision also proceeds on the basis that the suit earlier filed is non est in the eye of law.
8. To counter the contentions of learned counsel, Mr. E. Padmanabhan based on these decisions, learned counsel Mr. T.R Rajagopalan, would submit that it is only a formal defect in view of the provisions found in 0.23 R. 1(3) (b) C.P.C and relied on Sri Saravana Chit Fund Co. v. Serudeen 94 L.W 228=1981-1-M.L.J 437, which deals with failure to issue the statutory notice under S. 25 of the Chit Funds Act, and on the suit being dismissed for want of notice, it was treated as a technical defect, and to prevent parties from suffering, permission was granted to withdraw the suit under O. 23 R. 1(3) C.P.C with liberty to file a fresh suit, so that there may not be miscarriage of justice. This decision of the learned Judge could not apply in relation to a suit covered by S. 69 (2) of the Act, which had been held by the Supreme Court as mandatory The concept of formal defect which could be available under Order 23 rule i(3), C.P.C would have no relevance when a mandatory requirement is not complied with, for the institution of a suit. A learned Judge in Atul v. Radkishore A.I.R 1956 Orissa 77 also took the same view in respect of Order 23 rule 1 (d)C.P.C to the effect that a formal defect is a defect of form which is prescribed by rules of procedure such as misjoinder of parties, causes of action, non payment of court fees etc, and in a case where plaintiff fails to incorporate a prayer for dissolution of partnership in a suit for accounts' it would no doubt result in dismissal of suit, but it being a formal defect, plaintiff would be permitted to come again witha properly drafted plaint,. This is again a decision, which does not deal with noncompliance of a mandatory requirement.
9. Kannaiya v. Papaypa is a Full Bench decision which dealt with the powers of an appellate Court to allow a suit to be with drawn with-liberty to file a fresh suit, and lience, it has no application to the point in this revision. Therefore, those decisions do not in any manner enable the plaintiff to secure the withdrawal of the suit with per mission to file a fresh suit.
10. Yet, learned counsel Mr. T.R Raja-gopalan, would submit that, when the suit had been filed by the firm, the fact that the firm being represented by a partner whose name was not registered with the Registrar of Firms, on the date of filing of the suit, would not make it a void suit, and that S. 69 (2) would have no application. In the light of the decisions relied on by learned counsel Mr. E. Padmanabhan and which had been referred to above, such a distinction would not be available to salvage a suit of this nature, which is hit by the mandatory requirements of S. 69(2) of the Act. In this context, Messrs. Shreeram Finance Corporation v. Yasin Khan, requires to be referred to. It was held therein that a suit hit by S. 69 (2) is not maintainable, because it is a mandatory requirement.
11. In the concluding stage, learned counsel Mr. Rajagopalan would submit that the plaintiff is not now seeking for withdrawal of a suit, and that he would continue to conduct the suit by taking other points, which are available to it in law. Therefore, the court below is directed to restore the suit on its file and dispose it of, based on whatever other legal and factual contentions that may be raised by respective parties.
12. Hence, this revision petition is allowed. No costs.
VCS/RR.