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Abani Kanta Pal, In Re
Judgment Summary — M.M. Dutt, J. (with J. Jitendra Nath Chaudhuri concurring)
Factual and Procedural Background
This is a revisional application under Section 115 of the Civil Procedure Code filed by the plaintiff challenging Order No. 108 dated November 19, 1984, of the Assistant District Judge, Bankura, in Title Suit No. 34 of 1973.
The plaintiff's original suit sought a declaration that he was a partner holding a one-fourth share of a partnership firm operating a husking mill, and also sought appointment of a Commissioner for accounts and incidental reliefs. The defendants appeared and opposed the suit, contending inter alia that the husking mill was owned and possessed by opposite party No. 1 and that the plaintiff and opposite parties Nos. 2 and 3 had no right, title or interest in that business.
During the first hearing, opposite party No. 1 applied under Order 6 Rule 17 of the Civil P.C. to amend the written statement to allege that the firm was not registered and that the suit was not maintainable under Section 69(1) of the Partnership Act; that application was allowed by the Assistant District Judge. The plaintiff then sought amendment of the plaint under Order 6 Rule 17 to delete the prayer for declaration and instead to add a prayer for dissolution of the alleged partnership firm (with accounts). The Assistant District Judge disallowed this amendment, citing that the alleged firm was not registered as required by Section 69(1) of the Partnership Act. This decision led to the present revisional application.
Legal Issues Presented
- Whether the learned Assistant District Judge was justified in refusing the plaintiff's application to amend the plaint to delete the declaration claim and to add a prayer for dissolution and accounts.
- Whether Section 69(1) (and Section 69(2)) of the Partnership Act operates as an embargo only on the plaintiff (so that the court's jurisdiction is not ousted) or whether it is mandatory in a way that ousts the court's jurisdiction to entertain suits in contravention of those subsections — and how Section 69(3) (which saves suits for dissolution/accounts) interacts with that embargo.
Arguments of the Parties
Appellant's (Plaintiff's) Arguments
- Section 69(1) of the Partnership Act operates as an embargo upon the plaintiff (the party) and not on the Court; therefore the Court retains jurisdiction and may allow an amendment of the plaint even though the firm may not be registered.
- Section 69(3) preserves the right to sue for dissolution of a firm and for accounts; since the plaintiff sought to delete the declaration claim and substitute a prayer for dissolution and accounts, such a suit would fall within Section 69(3) and thus would not be barred by Sections 69(1) and 69(2).
- The petitioner relied on the decision in Debabrata Mukherjee v. Kalyan Kumar Ray (AIR 1983 Cal 241) — a case under Section 13(6) of the West Bengal Premises Tenancy Act — which had been taken to show that certain statutory requirements put an embargo on the plaintiff and not on the Court, and thereby supported the contention that the Court could non-suit a plaintiff who had not complied but nevertheless had power to entertain and decide matters on merits.
Respondents' (Opposite Parties') Arguments / Contentions
- It was contended in the defence that the husking mill was owned and possessed by opposite party No. 1 and that the plaintiff and opposite parties Nos. 2 and 3 had no right, title or interest in the husking mill business.
- Opposite party No. 1 specifically amended the written statement to assert that the alleged firm was not registered and that the suit was not maintainable under Section 69(1) of the Partnership Act; that position was accepted by the Assistant District Judge when allowing the amendment to the written statement.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Debabrata Mukherjee v. Kalyan Kumar Ray, AIR 1983 Cal 241 | Held under Section 13(6) of the West Bengal Premises Tenancy Act that the provision put an embargo on the plaintiff (landlord) and did not oust the Court's jurisdiction; non-compliance could lead to non-suiting the plaintiff but the court could still determine matters on merits. | The petitioner relied on this decision to argue by analogy that Section 69(1) of the Partnership Act similarly only embarrassed the plaintiff. The Court distinguished that decision, holding that the tenancy provision stands on different footing from Section 69 of the Partnership Act. |
| Loonkaran Sethia v. Ivan E. John, AIR 1977 SC 336 | The Supreme Court observed that Sections 69(1) and 69(2) are mandatory and render a suit by a partner of an unregistered firm to enforce contractual rights void; the provision is mandatory in character. | The Court relied on this Supreme Court authority to support the conclusion that Sections 69(1) and 69(2) are mandatory and based on public policy, thereby ousting jurisdiction where they are contravened. |
| Sunderial and Sons v. Yagendra Nath Singh, AIR 1976 Cal 471 | Held that a plaint filed by an unregistered firm under Section 69 would not be a plaint at all and proceedings would be without jurisdiction. | The Court cited this decision to reinforce the view that a plaint in contravention of Sections 69(1) and 69(2) is to be treated as void and that the court must ignore such a plaint. |
Court's Reasoning and Analysis
The court began by identifying the sole question as whether the Assistant District Judge was justified in refusing the plaintiff's application to amend the plaint. The court expressly set out subsections (1), (2) and (3) of Section 69 of the Partnership Act and considered the petitioner's contention that Section 69(1) is an embargo upon the party and not upon the Court and that Section 69(3) preserves the right to sue for dissolution or for accounts.
The court distinguished the tenancy-law authority relied upon by the petitioner (Debabrata Mukherjee) by noting that Section 13(6) of the West Bengal Premises Tenancy Act operates differently: that provision was held to embarrass the plaintiff but did not oust the court's jurisdiction and could be waived by the defendant. By contrast, Sections 69(1) and 69(2) of the Partnership Act, the court held, are founded on public policy and are mandatory in character. Consequently, those subsections cannot be waived by a defendant and the court is debarred from entertaining a suit that disregards their requirements.
Relying on the Supreme Court's observation in Loonkaran Sethia v. Ivan E. John and on the Calcutta High Court decision in Sunderial and Sons v. Yagendra Nath Singh, the court explained that a plaint filed in contravention of Sections 69(1) and (2) is to be treated as a void plaint (i.e., not a plaint at all) and that proceedings under such a plaint are proceedings without jurisdiction.
The court then drew the legal consequence: if a plaint is void for contravening Sections 69(1) and (2), it cannot be cured by amendment. By contrast, where a plaint is merely defective (but not void), amendment may properly be allowed to cure defects. Although Section 69(3) saves suits for dissolution and for accounts, that subsection cannot be invoked to rescue a plaint that is void ab initio by amendment.
Because opposite party No. 1 had taken the definite position that no partnership existed or that, if it did, it was not registered, the court observed that the Assistant District Judge must first determine, as a preliminary question, whether the alleged firm exists and, if it exists, whether it is registered. The court therefore set aside the impugned order only insofar as it concerned the application for amendment and remitted the matter to the Assistant District Judge to decide those factual and jurisdictional questions. The court specified the consequences depending on the findings (see Holding and Implications below).
Holding and Implications
Holding: The impugned order of the Assistant District Judge is set aside insofar as it relates to the application for amendment of the plaint; the matter is remitted to the trial court to determine (a) whether the alleged firm exists and, if so, (b) whether the firm is registered. The application is disposed of on that basis.
Implications:
- If the Assistant District Judge finds that there is no existence of the alleged firm, or that the firm exists but is not registered, then the application for amendment of the plaint must be dismissed — because a plaint that contravenes Sections 69(1) and (2) is void and cannot be cured by amendment.
- If the Assistant District Judge finds that the alleged firm does exist and is registered, then the amendment sought by the plaintiff (to substitute a prayer for dissolution and accounts) will be permitted.
- The Court affirmed the principle that Sections 69(1) and 69(2) of the Partnership Act are mandatory and based on public policy, thereby ousting jurisdiction where their conditions are not met; such requirements cannot be waived by a defendant.
- The opinion clarifies that Section 69(3) (preserving rights to sue for dissolution/accounts) does not permit transformation by amendment of a plaint that is otherwise void ab initio for breach of Sections 69(1) and (2).
- No order as to costs was made by the Court.
Disposition: The application is disposed of in the manner directed above. Jitendra Nath Chaudhuri, J. concurred. Order accordingly.
M.M Dutt, J.:— This application under S. 115 of the Civil P.C filed at the instance of the plaintiff is directed against Order No. 108 dt. Nov. 19, 1984 of the learned Assistant District Judge, Bankura passed by him in Title Suit No. 34 of 1973.
2. The said suit has been filed by the plaintiff for a declaration that he is a partner of a partnership firm having one-fourth share therein and carrying on business of the husking mill in question. He has also prayed for appointment of a Commissioner for accounts and for other incidental reliefs.
3. The defendants opposite parties entered appearance in the suit and contested the same by filing a written statement. It was inter alia contended by them that the husking mill in question was owned and possessed by the opposite party 1, and the petitioner and the opposite parties 2 and 3 had no right, title and interest in the said husking mill business.
4. While arguments were being advanced by the parties at the first hearing of the suit, the defendant opposite party 1 filed an application under O. 6, R. 17 of the Civil P.C, praying for amendment of the written statement for incorporating therein a statement to the effect that the so-called firm not having been registered, the suit was not maintainable at all and was liable to be dismissed under the provision of S. 69(1) of the Partnership Act. The said application of the opposite party No. 1 was allowed by the learned Assistant District Judge.
5. Thereafter, the petitioner also filed an application under O. 6. R. 17 of Civil P.C praying for amendment of the plaint for the deletion of the prayer for declaration and for inclusion of a prayer for dissolution of the alleged partnership firm. The learned Assistant District Judge disallowed the said prayer for amendment of the plaint as the alleged firm was not registered as required under S. 69(1) of the Partnership Act Hence this revisional application.
6. The only question involved in this application is whether the learned Assistant District Judge was justified in refusing amendment of the plaint, as prayed for by the plaintiff petitioner. Mr. S.P Roy Chowdhury, learned Advocate appearing on behalf of the petitioner submits that S. 69(1) of the Partnership Act does not stand in the way of the Court in allowing the amendment, as prayed for by the petitioner. It is contended that the amendment should have been allowed in view of sub-sec (3) of S. 69 of the said Act. At this stage, we may refer to the provisions of sub-secs. (1), (2) and (3) of S. 69 of the Partnership Act which provide as follows:
“69(1). No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.
(3) The provisions of sub-secs. (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect—
(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner.”
7. The contention of the learned Advocate for the petitioner is that sub-sec. (1) of S. 69 of the Act puts an embargo on the party and not on the Court and, as such, there was no impediment for the Court to grant amendment, as prayed for by the petitioner, even though the firm is not registered. It is submitted that as the prayer for declaration that the petitioner is a partner of the alleged firm has been sought to be deleted and, in its place, a player for dissolution of the firm is sought to be incorporated, such prayer along with the prayer for accounts is quite maintainable under sub-sec. (3) of S. 69 which specifically provides that the provisions of sub-secs. (1) and (2) shall not affect the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm etc. If the amendment is allowed, in that case, it would be a suit for dissolution of the firm and for accounts. Such prayers are not hit by the provisions of sub-secs. (1) and (2) of S. 69 of the Partnership Act.
8. In support of his contention, the learned Advocate for the petitioner has strongly relied upon a Bench decision of this Court in Debabrata Mukherjee v. Kalyan Kumar Ray, AIR 1983 Cal 241. That case was under S. 13(6) of the West Bengal Premises Tenancy Act, 1956. That section provides, inter alia, that notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in sub-sec. (1) shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy. It has been held that sub-sec. (6) of S. 13 of the West Bengal Premises Tenancy Act puts an embargo on the plaintiff and not on the Court, so that if the plaintiff had failed to fulfil the requirement of it, he would be non-suited but the Court can non-suit him not only on that issue but even on merits, if the merits are found against the plaintiff.
9. In our opinion, it may be that S. 13(6) of the West Bengal Premises Tenancy Act puts an embargo on the plaintiff and does not oust the jurisdiction of the Court. A defendant in a suit for eviction may waive service of a notice under S. 13(6). Section 69(1) of the Partnership Act, however, stands on a different footing. The embargo that has been put on the plaintiff under sub-secs. (1) and (2)of S. 69 is not for the purpose of protecting the interest of any party, but it is based on public policy. The requirements of sub-secs. (1) and (2) of S. 69 cannot be waived by the defendant, and the Court is debarred from entertaining a suit ignoring the fulfilment of such requirements. So, if a firm is not registered, excepting a suit as contemplated by S. 69(3), the Court will have no jurisdiction to entertain a suit in violation of S. 69(1). 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-secs. (1) and (2) of S. 69 of the Partnership Act. This view finds support from a decision of the Supreme Court in Loonkaran Sethia v. Ivan E. John, AIR 1977 SC 336. In that case, sub-secs. (1) and (2) of S. 69 were involved. The Supreme Court made the following observations:
“A bare glance at the section is enough to show that it is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void. In other words, a partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling within the ambit of S. 69 of the Partnership Act…….”
10. This Court in Sunderial and Sons v. Yagendra Nath Singh, AIR 1976 Cal 471 has held that in view of the language of S. 69 a plaint filed by an unregistered firm would not be a plaint at all and all proceedings thereunder will be proceedings without jurisdiction.
11. Thus, there cannot be any doubt when a plaint is filed in infringement of sub-secs. (1) and (2) of S. 69, it will be treated avoid plaint. In other words, the Court will ignore the existence of any such plaint.
12. So, if the plaint is treated a void plaint or it is considered that there was no filing of the plaint at all when such a plaint contravenes the provisions of sub-secs. (1) and (2) of S. 69, the question of amendment of such a plaint does not arise at all. If the plaint is not a void plaint, but a defective one, in that case, an amendment may be made for the purpose of curing or removing the defect. It is true that under sub-sec. (3), enforcement of any right to sue for dissolution of a firm or for accounts of a dissolved firm is not hit by the provisions of sub-secs. (1) and (2) of S. 69 of the Partnership Act. But where the plaint is void, there is no question of bringing the same within the purview of sub-sec. (3) of S. 69 by way of amendment.
13. It is the definite case of the opposite party 1 that there is no existence of any partnership firm and that, in any event, the alleged firm is not a registered one. If that be a fact, then the Court has no jurisdiction to grant any amendment of the plaint. It is, however, submitted by Mr. Roy Chowdhury that the existence of the firm or whether the firm is registered or not is yet to be determined in the suit Although there is some statement in that regard, yet there is no specific admission by the petitioner that the firm is not registered.
14. In the circumstances, we set aside the impugned order of the learned Assistant District Judge so far as the application for amendment of the plaint is concerned and direct him to decide whether the alleged firm is in existence and, if so, whether it is registered. In case he comes to the finding that there is no existence of any such firm or that there is such existence but the firm is not registered, in either case, he will dismiss the application for amendment of the plaint. If, however, it is found by him that there is the existence of the alleged firm and it is registered, the amendment as prayed for will be allowed.
15. The application is disposed of as above.
16. There will be no order as to costs.
Jitendra Nath Chaudhuri, J.:— I agree.
Order accordingly.
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