D. Falshaw, J. - (1.) THIS is an appeal filed under Clause 10 of the Letters Patent by firm Buta Mal Dev Raj against the decision of D.K. Mahajan, J. accepting a second appeal and dismissing the suit of the Plaintiff -Appellant.
(2.) THE suit was instituted in October 1951 for the recovery of Rs. 4,658/ - from the Defendant Chanan Mal, the amount being made up of balance of purchase price of certain goods, damages for breach of contract and interest arising out of contract entered into between the parties for the supply of paddy in September 1948. The trial Court granted a decree for Rs. 1642/10/ - and interest and no appeal was filed against that decree by the Plaintiff, though the Defendant filed an unsuccessful appeal. The learned Single Judge accepted the second appeal of the Defendant and dismissed the suit simply on the ground that the suit was barred by Section 69(2) of the Partnership Act and the case was covered by the decision of a Division Bench of this Court in Dr. V.S. Bahal v. S.L. Kapur and Co. : AIR 1956 P&H 24, which came after the decision of the Court of First Appeal. The Plaintiff firm is a partnership firm constituted, by a partnership deed dated the 14th of February 1947, the three partners named in this deed being Dev Raj, Parkash Wati and Wadawa Mal. The firm was registered with the Registrar of Partnerships on the 1st of February 1949, but only Dev Raj and Parkash Wati were registered as partners. It has, however, been admitted by Dev Raj in the course of the suit that Wadawa Mal remained a partner throughout and there is no doubt that he was a partner when the suit was instituted in the name of that firm Bulla Mal Dev Raj through Dev Raj partner. Section 69 of the Partnership Act deals with the effect of non -registration of partnerships, and Sub -section (1) deals with suits by a partner against a firm or against any person alleged to have been a partner in the firm. Sub -section (2) deals with suits by a partnership firm against a third party and reads: 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 firm.
(3.) IN the case followed by the learned Single Judge the firm which was the Plaintiff in the suit had originally consisted of three partners, but one of them had gone, out and taken a separate share of the business at another place outside Delhi, and a third partner had been taken in some years before the suit, but this third partner had not been declared as a partner with the Registrar until the suit had been pending for a year or so. A number of points arose in the second appeals, which were before Bhandari, C.J. and myself, and one of them was the effect of not haying registered the name -of the third partner before the suit was instituted. We held that the proper interpretation of Section 69(2) of the Act was that in order to institute a suit a partnership firm must be not only be a registered firm but also all the persons who are partners in the firm at the time of the institution of the suit must be, or have been, shown as such in the Register. According to this decision the present suit was incompetent because one of the partners, Wadawa Mal, who had been a partner from the beginning, of the constitution of the partnership firm, was still a partner when the suit was instituted and he had never been shown as such in the Register.;