- (1.) THIS revision arises against the dismissal of an application under O.7, Rule 11 (d) of C.P.C. for rejection of the plaint.
(2.) THE respondents herein filed-O.S.No.8120 of 1980 before the XII Assistant City Civil Judge, Madras against the petitioner herein for an injunction restraining the petitioner from interfering with the peaceful possession and enjoyment of the partnership firms, business and premises and for direction to the petitioner to issue receipts for advance and rents in the name of the partnership firm and for other relief. Pending the suit, interim injunction was also granted in I.A.No. 19575 of 1998. Thereafter, the petitioner filed I.A.No.5274 of 1999 under O.7, Rule 11 (d) of C.P.C. for rejecting the plaint as it was barred by law in view of the provisions of Sec.69 of the Indian Partnership Act (herein after referred to as "the Act"). In the affidavit filed in support of this application, the petitioner stated that there is no whisper in the plaint as to whether the partnership had been registered or not and therefor e, the suit ought to be dismissed as not maintainable. The respondents in their counter would state that they had filed it in their individual capacity and the question whether the partnership is registered or not is not germane to the issue that arises for consideration in the suit. The learned Judge dismissed the application on the ground that though there are references to the partnership business the plaint appears to have been filed by the respondents in their individual capacity and the lower court held that the application itself was premature and that the proper course would be for that the petitioner to file the written statement without any further delay and raise the issue of non-registration of the partnership and maintainability of the suit as a preliminary issue. Mr. S.V.Jayaraman, learned Senior Counsel appearing for the petitioner submitted that Sec.69 (2) of the Act imposes a prohibition on suits to enforce certain rights by or on behalf of unregistered firms. Sec.69 (2) of the Act is extracted herein; "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 firms." According to the learned Senior Counsel, a mere reading of the plaint shows that the respondents and defendants 2 and 3 are partners hav-ing executed a partnership agreement dated 12.1.1996. the cause of action for the suit has arisen where the partnership firm premises is situated and amongst other dates on 18.11.1998 when the petitioner interfered with the partnership business and when he, in collusion with defendants 2 and 3 failed to issue receipt of rents and advances in the name of the partnership firm. Therefore, according to the Senior Counsel, this is a suit that has arisen from the contract of tenancy between the firm and the petitioner/landlord and therefore, unless the partnership is registered the suit itself cannot lie. He relied on the following decisions: (a) I.T.C. Limited v. Debts Recovery Appellate Tribunal and others , 1998 (2) S. C. C. 70. (b) Seth Loonkaran Sethiya and others v. Mr.Ivan E.John and others , 1997 (1) S.C.C. 379. (c) Gandhi & Co. v. Krishna Glass Pvt.Ltd., A.I.R. 1987 Bom 348. (d) K.R.M. Money Lenders rep. by its Power Agent Karuppiah v. Mr.A.Manoharan @ Doss, 1999 (2) C.T.C. 540. to show that the defect in filing the suit which is barred by Sec.69 (2) of the Act goes to the root of the matter and the Court has to reject the plaint under O.7, Rule 11 (d) of C.P.C. He would submit that this a defect which cannot be cured even by subsequent registration. The learned Senior Counsel submitted that a plain reading of the plaint itself revealed that the firm was not registered, and, combined with the fact that the partnership agreement which is the document filed along with the plaint also shows that the partnership agreement was not registered, the plaint had to be rejected. In reply, the learned Counsel for the respondents submitted that the petitioner could not raise such an objection without filing the written statement. He referred to various provisions of the Code of Civil Procedure to support his case. In particular, he referred to O.4, Rule 5 (2) of C.P.C. and submitted that the petitioner had not complied with it and filed the written statement. According to him, though reference is made to the partnership firm, the right claimed by the respondents are in respect of their individual and separate rights as tenants in the premises belonging to the petitioner. Therefore, the mere fact that the word used is partnership premises should not be taken into account while exercising the power under O.7, Rule 11 (d) of C.P.C. According to the learned counsel, the suit was a validly instituted one. Therefore, it cannot be rejected but only dismissed and there was nothing to show from a mere reading of the plaint that the suit is barred. The question of whether the firm is registered or not and whether on that ground the suit was not maintainable can only be decided after the written statement is filed. This is why the court-below had rightly held that the application is pre-mature. It was also stated by the learned counsel that the cause of action had come into existence long prior to the partnership firm. This was another reason why the suit cannot be rejected.
(3.) LEARNED counsel for the respondents cited several decisions Kalyan Singh v. Firm Lachiiminarain Shambhulal, A.I.R. 1951 Raj. 11, Mohamad Ali v. Kariji Kondho Rayaguru, A.I.R. 1945 Pat. 286, Goverdhandoss v. Abdul Rahiman, A.I.R. 1942 Mad. 634, Chiman Ram Batar and others v. Ganga Saha and another, A.I.R. 1961 Ori 94, Jalal Mohammed Ibrahim and others v. Kakka Mohammed Ghouse Sahib, A.I.R. 1972 Mad. 86, N.A.Munavar Hussain Sahib and another v. E.R.Narayanan and others, A.I.R. 1984 Mad. 47 and Smt.Dropadi Devi v. Ram Dos and others, A.I.R. 1974 All. 476 to support his case. For the purpose of this case it is necessary to see if the provisions of Sec .69 (2) of the Act are attracted to the facts of this case, on a mere reading of the averments in the plaint, since the language of 0.7, Rule 11 (d) of C.P.C. is "where the suit appears from the statement in the plaint to be barred by law". Therefore, on a prima facie reading of the plaint it must be apparent that the plaint is barred by law. The fact that all the partners are before the court, and provisions of O.30, Rules 1 and 2, C.P.C. have been complied with does not wipe off the defect of non-registration in a suit of the nature specified in Sec.69 (2) of the Act. The provisions of Sec.69 (2) of the Act are substantive and the mandatory requirement of registration must be satisfied first, before a suit of the nature mentioned therein, is instituted. Therefore, the provisions of O.30, Rules 1 and 2 of C.P.C. come into play, they are procedural and they indicate the mode and form in which the suit has to be framed and the procedure applicable. Therefore, compliance of the procedural formality will not erase the violation of substantive law. In the decision reported in Seth Loonkaran Sethiya and others v. Mr.Ivan E.John and others, 1997 (1) S.C.C. 379. The Supreme Court held that the suit by a partner of an unregistered firm for endorsement of an agreement entered into by him as partner was not maintainable. The decision reported in Gandhi & Co. v. Krishna Glass Pvt. Ltd., A.I.R. 1987 Bom. 348, is with reference to the second limb of Sec.69 (2) of the Act which requires that the persons suing are or have been shown in the register of firms as partners. In that case they were not and the bar of Sec.69 (2) of the Act was held to operate. The decision reported in K.R.M.Money Lenders rep. by its Power Agent Karuppiah v. Mr.A.Manoharan alias Doss, (1999) 2 C.T.C. 540, is with reference to a suit by an unregistered firm which was subsequently registered. The question was whether the subsequent registration would cure the original illegality. In an elaborate judgment this Court held it did not, it also held in that case that the filing of a suit by an unregistered firm is a defect that goes to the root of the matter and the court is bound to consider this even if the defendants had failed to raise such an objection and if barred by law, the court was bound to reject the plaint. Reference was made in this case to two other judgments of this Court reported in T.Savariraj Pillai v. M/S.R.S.S. Vastred & Co. represented by one of its partners M.M.Nalavad, 1989 (2) L.W. 418 and Selvam Estates represented by its Partner Mrs.Mohanasundari Murugan v. Thangapandia Maharajan & Co., 1991 T.L.N.J. 107. To decide whether Sec.69 (2) of the Act is attracted the plaint statements must be perused. Though the plaint in this case refers to a partnership agreement dated 12.1.1996, the suit is filed in the name of two individuals who do not describe themselves as partners. It is also evident from the averment in the plaint that the rental advance to the petitioner who is the owner of the suit premises was paid on 25.8.1995 which is prior to the partnership deed. The tenancy agreement or con tract is not before the court nor is there any averment in the plaint as to who were the parties to it. Though the plaint has not been very happily worded the cause of action appears to be the interference of the petitioner with the respondents" possession. The prayer is for restraining the petitioner from interfering with the respondents" possession of the partnership firm otherwise than by due process of law. ;