LAL, J. - (1.) THIS civil second appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 19. 7. 1989 passed by the learned Addl. District & Sessions Judge, Kishangarhbas (Alwar) whereby the appeal No. 25/1987 has been dismissed up-holding the judgment and decree dated 24. 2. 1987 of the learned Civil Judge, Kishangarhbas in Civil Original Suit No. 73/1985 vide which the suit of the plaintiff-respondent has been decreed.
(2.) BRIEFLY stated, the relevant facts are that the plaintiff- respondent filed a civil original suit in the aforesaid court on 12. 1. 1981 inter-alia pleading that the plaintiff firm is a registered partnership firm under the Indian Partnership act, 1932 (in short `the Act') and it has three partners namely Hazari Lal, Babu Lal and Smt. Shanti Devi. It carries on business of commission agent in Khairthal town. The defendant appellant took a loan of Rs. 4,500/- from the plaintiff-firm on 20. 2. 1978, but neither repaid the said loan nor brought `gwar' and other grains at the shop of the plaintiff-respondent firm for sale. He was given notice, but he neither gave any reply to the notice nor repaid the aforesaid loan amount. So, the suit out of which this appeal has arisen was filed. The defendant appellant contested the suit denying all the averments made in the plaint and claiming Rs. 1,000/- as special costs. the trial court framed five issues including the issue No. 2 pertaining to the registration of the plaintiff firm under the Act. The trial Court after taking evidence of both the parties and affording opportunity of hearing, decreed the suit. The appeal preferred from the said judgment and decree was dismissed as indicated above. Hence, the instant second appeal which was admitted on 26. 3. 1991 on the following substantial questions of law. " 1. Whether the suit filed by the respondent-plaintiff firm could be decreed without the finding that the respondent firm was registered on the date of filing of the suit and the partner through whom the suit was filed was one of its registered partners? 2. Whether the above said question cannot be raised by the respondent when he had not taken this objection before the courts below?" I have heard learned counsel for the parties and have perused the judgment and decree of the trial court as well as that of the first appellate Court. I have also perused the record. Learned counsel for the appellant has contended that the plaintiff firm being not registered under the Act and its members having not been shown as entered in the register of firms, the suit was barred by the provisions of Section 69 (2) of the Act. Reliance has been placed on M/s. Jammu Cold Storage and General Mills Ltd. vs. M/s. Khairati Lal and Sons (AIR 1960 Jammu & Kashmir 101) (FB) and M/s. Shreeram Finance Corporation vs. Yasin Khan & Others (AIR 1989 SC 1769 ). It is also submitted that the subsequent registration of the plaintiff firm cannot cure the defect. Learned counsel for the defendant-respondent has contended that the plea with regard to the non-registration of the plaintiff-firm has not been specifically raised in the written statement and before the learned courts below. It is a mixed question of fact and law. Unless this question is enquired into and decided the provisions of Section 69 (2) of the Act cannot be invoked by any party to the suit in the second appeal. Reliance in this regard has been placed on Kalyan Sahai vs. Firm Lachhinarain Shambhulal (LIR (38) 1951 Rajasthan 11), M. J. Velu Mudaliar and another vs. Sri Venkateswara Finance Corp. and others (AIR 1972 Andhra Pradesh 63), M/s. Samyuktha Cotton Trading Co. vs. Bheemineni Venkata Subbaiah and others (AIR 2005 Andhra Pradesh 1), N. A. Muunavar Hussain Sahib and another vs. E. R. Narayanan and others (AIR 1984 Madras 47), Popsingh Mahadeo Prasad vs. Dipchand Ray and another (AIR 1960 Orissa 123) and Raptakos Brett & Co. Ltd. vs. Ganesh Property (1998) 7 SCC 184 ). I have carefully considered the rival submissions. Section 69 (2) of the Act which deals with the effect of non-registration of the firm reads as under:- " 69 (2)- 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.) IT has been held in M/s. Jammu Cold Storage and General Mills Ltd. vs. M/s. Khairati Lal and Sons (supra) the provisions of Sub-section (2) of Section 69 of the Act are mandatory. The registration of the firm is a condition precedent to the right to institute the suit. If on the date of institution of the suit the firm is not registered, the subsequent registration cannot validate the suit. The only option left to the court is to dismiss it. In M/s. Shreeram Finance Corporation vs. Yasin Khan and others (supra), the plaintiff-firm was registered and its members were also shown entered in the register of firms, but there was change in the Constitution of the firm. Two of the partners shows as partners in the register of firms retired and one new partner was added. Two minors were admitted to the benefit of the firm. It was held by the Hon'ble Apex Court that the suit filed by the firm after change in the constitution and before change was notified to the registrar was not maintainable as the current partners were not shown in the register of the firms on the date of the suit. In the instant case, the plea with regard to registration of the firm was denied in the written statement and an issue being Issue No. 2 was also framed with regard thereto and the same was decided in favour of the plaintiff. The learned court below did not discuss this issue at all. This appeal has been admitted on the substantial question of law pertaining to this aspect of the matter. ;