Suraj Bhan Anil Kumar & Anr. vs Molu Ram Kapoor Chand
1999 Latest Caselaw 663 Del

ORDER

Dr. M.K. Sharma. J.

1. The present revision petition is directed against the order dated 16.1.98 passed by the Additional District Judge in Suit No. 691/93 allowing the application filed by the plaintiff under Order 6, Rule 17 and dismissing the application of the defendant under Order 7, Rule 11 of the Code of Civil Procedure. The respondent herein as plaintiff filed a suit for recovery of Rs. 1,52,850/-. The said suit was registered as Suit No.691/93. The aforesaid suit was filed by the respondent-plaintiff claiming the respondent firm to be a registered partnership firm and the plaint was signed, verified and instituted by Shri Purshottam Garg claiming himself to be a registered partner of the respondent-plaintiff firm. The Summons were issued in the aforesaid suit on service of which the petitioners-defendants entered appearance and filed a written statement taking preliminary objection and contending, inter alia, that the suit is not legally competent as the plaintiff is an unregistered firm and, therefore, the suit is not maintainable in view of the provisions of Section 69 of the Partnership Act. In the replication also the plaintiff reiterated the stand that the plaintiff is a Registered partnership firm and is duly registered under the Provisions of Indian Partnership Act. It was stated in the said replication filed by the respondent-plaintiff that the certified copy of the Form-A to prove the registration of the partnership is not available with the plaintiff and that the plaintiff has applied to the Registrar of Firms for issuance of certified copy of Form-A.

2. In view of the pleadings of the parties an issue was also framed to the effect as to whether the plaintiff is a Partnership Firm and registered under the Indian Partnership Act, and whether the present suit is instituted by a duly authorised person. The suit was listed before the trial court for recording evidence of the respondent-plaintiff. Shri Purshottam Garg appeared as one of the witnesses of the plaintiff and he deposed on oath that the respondent-plaintiff firm is a Registered Partnership Firm and that he is one of the registered partner. However, during the course of cross-examination said Shri Purshottam Garg, however, stated that he is the sole Proprietor of the plaintiff firm since 1.4.1993.

3. Subsequent thereto the petitioner-defendant filed an application under Order 7, Rule 11 of the Code of Civil Procedure seeking dismissal of the suit under the provisions of Section 69 of the Partnership Act in view of the statement of Shri Purshottam Garg and also in view of the documents filed on record. The respondent-plaintiff also filed an application under Order 6, Rule 17 of the Code of Civil Procedure seeking to amend the plaint so as to plead the status of proprietorship concern of the respondent on the date of the filing of the suit instead that of a registered partnership firm. Both the aforesaid applications were contested by the respective parties and arguments were heard by the Additional District Judge and by order dated 16.1.98 the application under Order 6, Rule 17 of the Code of Civil Procedure was allowed and consequently the application under Order 7, Rule 11 CPC was dismissed.

4. Counsel for the petitioner submitted that the suit instituted by an unregistered partnership firm is barred under the Provisions of Section 69 of the Partnership Act and, therefore, the suit was not properly instituted and should have been dismissed on the basis of the application filed by the petitioner under Order 7, Rule 11 of the Code of Civil Procedure. He further submitted that Shri Purshottam Garg who filed the present suit has admitted that there was no registration of the plaintiff firm on the date of filing of the suit although in the plaint and the replication filed by him he has reiterated that the plaintiff firm is a registered partnership firm.

5. Learned counsel appearing for the respondent, however, submitted that at the time of the filing the suit there was misdescription of the plaintiff in the plaint. On the date of the filing of the suit the plaintiff was a proprietorship firm and not a registered partnership firm and therefore, an application was filed by the respondent-plaintiff seeking for amendment of the plaint seeking to properly describe the plaintiff, which according to the learned counsel was rightly allowed by the trial court. In support of this submission the learned counsel relied upon the decision in Mt. Suga Kuer Vs. Firm Brijraj Ramniwas and Others; AIR. 1937 Patna 526; in M/s. Ganesh Trading Co., Appellant Vs. Moji Ram, Respondent; and in Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon; .

6. I have considered the submission of the learned counsel appearing for the parties and perused the records. It transpires from the said records that on the date of the filing of the suit the plaintiff was not a registered partnership firm but was a proprietorship firm. This is what is disclosed from the documents placed on record and also from the evidence of Shri Purshottam Garg who was examined and cross-examined. It is indeed a settled proposition of law that if a suit is instituted by a unregistered firm such a suit is barred under the provisions of Section 69 of the Indian Partnership Act. However, if the suit is instituted by a firm which is not an unregistered partnership firm but a proprietorship firm, the suit is maintainable and could be proceeded with. It is established from the record that on the date of the filing of the suit the plaintiff was a proprietorship firm and not a partnership firm. Therefore, it cannot be said that the suit was instituted by an unregistered partnership firm. At best it is a case of misdescription of a party namely, the plaintiff and if in order to describe the plaintiff properly, an application is filed in the court seeking for amendment of the plaint, such an application is required to be allowed as the said amendment is intended to serve the ends of justice. It is held in Jai Jai Ram Manohar Lal (supra) that rules of procedure are intended to be a handmade to the administration of justice and that a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. It was further held that, however, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. In the said case it was also held that the description of the plaintiff by a firm name in a case where the Code of Civil Procedure did not permit a suit to be brought in the firm name should properly be considered as a case of description of the individual partners of the business and as such a misdescription, which in law can be accorded.

7. In my considered opinion the ratio of the aforesaid decision squarely applies to the facts and circumstances of the present case. In the present suit also there is an error or misdescription in naming the plaintiff that the plaintiff was a proprietorship firm and not a registered partnership firm. There is no evidence on record produced by the petitioner-plaintiff to indicate that the aforesaid statement and misdescription was done mala fide or that because of the aforesaid act on the part of the plaintiff any injury has been caused to the defendant. When a suit is instituted misde-

scribing the plaintiff an amendment of the plaint is allowed substituting the real plaintiff in question no question of limitation also arises and the plaint on such amendment is deemed to have been instituted in the name of the real plaintiff on the date of which it was originally instituted. The trial court while passing the impugned order legally exercised its jurisdiction vested in it and also in accordance with the settled proposition of law. There is no infirmity in the said order.

8. As the order allowing the amendment of the plaint is upheld the order passed by the trial court dismissing the application under Order 7, Rule 11 of the Code of Civil Procedure is also upheld as the said application has been rendered infructuous.

9. The petition has no merit and is dismissed in terms of the aforesaid order.