Tarun Chatterjee, J. - (1.) This revisional application arises out of an order passed by the Assistant District Judge, 4th Court at Alipore rejecting the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant/petitioner in a suit for declaration and injunction filed by the plaintiff-opposite party The petition under Order 7 Rule 11 of the Code of Civil Procedure was filed by the petitioner alleging that since the instant suit has been filed on behalf of an unregistered partnership firm-Eagle Construction, it is not maintainable in law in view of the bar under section 69(2) of the Partnership Act and therefore the plaint must be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure which says that where the suit appears from the statement in the plaint to be barred by any law, the plaint shall be rejected. From a perusal of the impugned order it appears that the said application under Order 7 Rule 11 of the Code of Civil Procedure has been rejected by the Trial Court on a finding that after perusal of the plaint particularly paragraph 1 of the same it must be held that the statements made in paragraph 1 to the effect that the plaintiffs have been carrying on business in co-partnership under the name of and style of Eagle Construction shall mean that the said Eagle Construction is nothing but a Hindu Joint family properties and the plaintiffs are not partners in the same. Apart from that it has been held in the impugned order that the dispute between the parties as to whether the plaintiff sale partners of any unregistered partnership firm or they are members of the Joint Hindu Families cannot be ascertained without taking evidence. Feeling aggrieved by this order the defendant-petitioner has come upto this Court in revision.
(2.) Mr. Roy appearing on behalf of the petitioner submitted that :n view of section 69(2) of the Partnership Act which clearly provides that 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 sueing have been shown in the record of registered firms as partners of the same. Relying on the words on behalf of in section 69(2) of the Partnership Act and after taking me through certain paragraphs of the plaint Mr. Roy contended that the plaint has been filed on behalf of an unregistered partnership firm under the name and style of Eagle Construction and therefore the Trial Court has acted illegally and with material irregularity in the exercise of its jurisdiction in rejecting the application under Order 7 Rule 11 of the Code of Civil Procedure. Mr. Roy for the purpose of holding that the suit has been filed on behalf of the unregistered partnership firm Eagle Construction has taken me through paragraphs 1, 3, 4 and 5 of the plaint where it has been alleged by the plaintiffs that the plaintiffs are carrying on business in co-partnership under the name of Eagle Construction and also the statements made that "the defendant No. 1 has since discontinued the enlistment of Eagle Construction that the plaintiffs from January, 1991 for reasons best known to it and its officers." and the statements in paragraph 4 to the extent "the tender submitted by the plaintiffs in their firm name Eagle Construction was for internal wiring amount to about Rs. 1 lakh while the cable laying work along with supply of materials amounted to Rs 10,88,533" and the statements made in paragraph 5 of the plaint to the extent that "after the acceptance of tender the said Eagle Construction sent two clarificatory letters on January, 1990 and January 25, 1990 respectively..........", contended that in view of the aforesaid statements made in the plaint it must be held that the plaint was filed on behalf of the unregistered partnership firm Eagle Construction and therefore, the plaint must be rejected under Order 7 Rule 11 of the Code of Civil Procedure as it must be held that the suit was filed on behalf of an unregistered firm. In support of this contention Mr. Roy has relied on a Supreme Court decision reported in AIR 1977 SC 336 (Loon Karan Sethia v. Evan E. John). Mr. Roy relying on paragraph 22 of the aforesaid decision of the Supreme Court invited me to hold in this case that the suit having been filed on behalf of an unregistered firm the plaint ought to have been rejected by the Trial Court under Order 7 Rule 11 of the Code of Civil Procedure as it appears on the statement made in the plaint that the suit is barred under section 69(2) of the Partnership Act. Mr. Roy thereafter relied on another decision of Gujrat High Court reported in AIR 1969 Guj 178 (Bharat Sarvodaya Mills v. Mohatta Brothers). Mr. Roy also relied on a single bench decision of the Delhi High Court reported in AIR 1987 Del 165 (Arjan Singh & Ors. v. Union of India & Ors.). Mr. Roy thereafter cited a Division Bench decision of this Court reported in 82 Cal WN 419 (Indo Swiss Trading Company & Ors. v. Ghatal Steam Navigation Company & Ors.).
(3.) Mr. Chatterjee appearing on behalf of the opposite party on the other hand contested the submissions so made on behalf of Mr. Roy. He contended that initially the suit was dismissed for default. Subsequently the same was restored. Mr. Chatterjee contended that since the petitioner already has filed a written statement and an issue has been raised that the suit is barred under section 69(2) of the Partnership Act, the question of rejection of the plaint under order 7 rule 11(d) of the Code of Civil Procedure cannot arise at all at this stage. In support of this contention Mr. Chatterjee relied on a judgment of Madras High Court reported in AIR 1984 Madras 47 (N.A. Munavar Hussain v. E.R. Narayanan) Mr. Chatterjee thereafter contended that the object and purpose of pleading is to enable the adversary to know the case it has to make and the pleadings however, should receive a liberal construction and no pet-antic approach should be adopted to defeat justice on splitting technicalities. According to Mr. Chatterjee pleadings were expressed in words which may not expressly make out a case in accordance with strict interpretation of law and in such a case it is the duty of the Court to ascertain the substitute of the pleadings to determine the question. Therefore, Mr. Chatterjee contended after taking me through the entire plaint that the suit filed by the plaintiffs was not on behalf of the unregistered firm and accordingly, the application under order 7 rule 11 of the Code of Civil Procedure has been rightly rejected by the Trial Court. In support of this contention Mr. Chatterjee has relied on a Supreme Court decision which is reported in AIR 1987 Supreme Court 1242 (RamSwarup Gupta v. Bishun Narayan Inter College & Ors.) Lastly Mr. Chatterjee relied on a decision of the Supreme Court reported in AIR 1961 Supreme Court 325 (Purushottom and Company v. Monilal and Sons).;