K. VENKATASWAMI, J. - (1.) THE Judgment of the court was delivered by
(2.) LEAVE granted. This appeal by special leave has arisen under the following circumstances 175 The appellants are the partners of a suit firm called 'M/s Paramount Builders'. The partnership was entered into on 29/11/1979 with the following individuals as partners: JUDGEMENT_171_2_1998Html1.htm The said partnership firm was registered on 15/12/1980 under Registration No. 158675 with the Registrar of Firms. On 6/5/1986, Shri Mohanlal Hinji Chawda, a partner of the firm (Sr. No. 6 above) died and in his place, his widow Smt Jijiben Mohanlal Chawda was admitted as a partner in the firm. After the admission of the said Smt Jijiben Mohanlal Chawda, another deed of partnership was made consisting of the six old partners and the newly admitted partner Smt Jijiben Mohanlal Chawda. As a matter of fact, the induction of the new partner was not brought to the notice of the Registrar of Firms by forwarding the required particulars. It is on record that still later on 3/11/1992 another partnership deed was brought into existence consisting of the same partners. It is also on record that yet another partner Smt Hemkuver B. Kotak (S. No. 4 above) died in September 1994. The fact of death of this partner also was not intimated to the Registrar of Firms. While so, the 1st respondent gave a notice of dissolution of the firm to the appellants and also filed a suit for the dissolution of the partnership firm bearing Suit No. 5016/94 on 15/12/1994 in the High court of Judicature at Bombay on the original side. Initially in the plaint, the constitutional validity of Section 69(2-A) of the Indian Partnership Act (hereinafter called "the Act"), as amended by the Maharashtra Act, was not raised. The 1st respondent moved a Chamber Summons No. 301 of 1997 seeking permission of the court to carry out certain amendments to the plaint. Briefly, the amendments sought were that subsequent changes and/or modifications in the partnership deed of M/s Paramount Builders under the deed of partnership dated 20/10/1986 and also in the deed of partnership dated 3/11/1992 are merely in the nature of changes and/or modifications which do not affect registration of the said firm of M/s Paramount Builders, as required under the Act, for entitling a partner to institute a suit for reliefs against the partners on dissolution of firms and alternatively, the other amendment sought was to challenge the vires of Section 69(2-A) of the Act as in force in State of Maharashtra.
(3.) THE amendment sought was seriously opposed by the appellants inter alia contending that the suit as filed was maintainable and. therefore, the 176 amendment cannot be allowed. In other words, according to the appellants on and from 20/10/1986 when a new partnership deed was made, the registration already given to the firm ceased to have validity and the a partnership as at present must be deemed to be an unregistered one and, therefore, the suit was hit by Section 69(2-A). It was also contended that without impleading the State of Maharashtra and the Union of India, the vires of Section 69(2-A) in the Partnership Act cannot be challenged. THE learned trial Judge accepting the objections raised by the appellants found that Section 69(2-A) of the Act creates a bar on the threshold of the filing of the suit for the relief covered in the suit and the very suit filed by the plaintiff was incompetent. That being the position, the application for amendment could not be permitted. Consequently, the application was rejected. Aggrieved by the rejection of the amendment application, the first respondent preferred an appeal to the division bench of the High court in c Appeal No. 509 of 1997.;