Delhi High Court
M/S Texmaco Ltd. vs Ch.Ramswaroop Wrestling Club & ... on 7 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P.157/2014 & C.M.No.18169/2014 (Exemption)
% 07th November, 2014
M/S TEXMACO LTD. ..... Petitioner
Through Mr.Dayanand Krishnan, Sr.Advocate
with Mr.Sachin Datta, Advocate.
versus
CH.RAMSWAROOP WRESTLING CLUB & ORS. ..... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The present petition under Section 115 of Code of Civil Procedure
Act, 1908 (CPC) impugns the order of the trial court dated 25.9.2014 by
which the trial court has rejected an application filed by the
petitioner/defendant no.2 under Order VII Rule 11 CPC.
2. The limited issue which was required to be addressed for disposal of
the said application was that the petitioner/defendant no.2 claimed that since
the respondent no.1/plaintiff was an unregistered association on the date of
filing of the suit, subsequent registration of the respondent no.1/ plaintiff as
C.R.P.No.157/2014 page 1 of 4
a society under the Societies Registration Act, 1860 during the pendency of
the suit will not make a difference to the invalidity in the filing of the suit.
Reliance is placed upon the judgments of the Supreme Court which however
pertain to Section 69 of the Partnership Act, 1932 that subsequent
registration of a partnership firm which is a plaintiff during the pendency of
the suit will not cure the original defect of filing of a suit by an unregistered
partnership firm.
3. I cannot agree with the arguments urged on behalf of the
petitioner/defendant no.2 because the argument ignores the provision of
Section 21 of the Limitation Act, 1963 and the judgment of the Supreme
Court in the case of Karuppaswamy & Ors. Vs. C.Ramamurthy, (1993) 4
SCC 41. The provision of Section 21 of the Limitation Act says that when a
person is newly added as a party to the suit, the suit as against that person
will be taken to be filed as on the date of filing of the application by which
such a person has sought to be added as a party. In the present case, the
plaintiff originally being an unregistered society, pendent lite it was
registered under the Societies Registration Act, 1860, and therefore on the
application being filed when the aspect of registration was brought on record
in the suit, therefrom the suit by the society will be taken to have been filed
C.R.P.No.157/2014 page 2 of 4
on the date on which the aspect was brought on record that the unregistered
association of the plaintiff has become a society registered under the
Societies Registration Act, 1860.
4. The Supreme Court in the case of Karuppaswamy (supra) holds that
when a suit is filed against a dead person, the suit will not be nullity and
when taken with Section 21 of the Limitation Act, the suit will be instituted
as against the legal heirs of the deceased defendant when the legal heirs of
the defendant are brought on record. Therefore, applying the spirit of the
provision of Section 21 of the Limitation Act and the ratio of judgment of
the Supreme Court in the case of Karuppaswamy (supra), though the suit as
originally filed being by an unregistered association was not maintainable,
subsequent registration under the Societies Registration Act, 1860 cures the
defect.
5. The petitioner/defendant no.2 can always now seek amendment of the
written statement to raise all legal objections including of any aspect of the
Limitation Act which the petitioner/defendant no.2 may choose to raise, and
if an application for amendment of the written statement is filed by the
petitioner/defendant no.2, the trial court will consider the same liberally
inasmuch as curing of the defect in filing of the suit by registering of the
C.R.P.No.157/2014 page 3 of 4
respondent no.1/plaintiff society during the pendency of the suit is a
subsequent event.
6. Dismissed with the aforesaid observations.
VALMIKI J. MEHTA, J
NOVEMBER 07, 2014
KA
C.R.P.No.157/2014 page 4 of 4
