9911796707
TMI Blog1999 (8) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 1,52,850/-. The said suit was registered as Suit No.691/93. The aforesaid suit was filed by the respondent-plaintiff claiming the respondent firm to be a registered partnership firm and the plaint was signed, verified and instituted by Shri Purshottam Garg claiming himself to be a registered partner of the respondent-plaintiff firm. The Summons were issued in the aforesaid suit on service of which the petitioners-defendants entered appearance and filed a written statement taking preliminary objection and contending, inter alia, that the suit is not legally competent as the plaintiff is an unregistered firm and, Therefore, the suit is not maintainable in view of the provisions of Section 69 of the Partnership Act. In the replication also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff also filed an application under Order 6, Rule 17 of the Code of Civil Procedure seeking to amend the plaint so as to plead the status of proprietorship concern of the respondent on the date of the filing of the suit instead that of a registered partnership firm. Both the aforesaid applications were contested by the respective parties and arguments were heard by the Additional District Judge and by order dated 16.1.98 the application under Order 6, Rule 17 of the Code of Civil Procedure was allowed and consequently the application under Order 7, Rule 11 CPC was dismissed. 4. Counsel for the petitioner submitted that the suit instituted by an unregistered partnership firm is barred under the Provisions of Section 69 of the Partners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the filing of the suit the plaintiff was not a registered partnership firm but was a proprietorship firm. This is what is disclosed from the documents placed on record and also from the evidence of Shri Purshottam Garg who was examined and cross-examined. It is indeed a settled proposition of law that if a suit is instituted by a unregistered firm such a suit is barred under the provisions of Section 69 of the Indian Partnership Act. However, if the suit is instituted by a firm which is not an unregistered partnership firm but a proprietorship firm, the suit is maintainable and could be proceeded with. It is established from the record that on the date of the filing of the suit the plaintiff was a proprietorship firm and not a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a proprietorship firm and not a registered partnership firm. There is no evidence on record produced by the petitioner-plaintiff to indicate that the aforesaid statement and misdescription was done mala fide or that because of the aforesaid act on the part of the plaintiff any injury has been caused to the defendant. When a suit is instituted misde- scribing the plaintiff an amendment of the plaint is allowed substituting the real plaintiff in question no question of limitation also arises and the plaint on such amendment is deemed to have been instituted in the name of the real plaintiff on the date of which it was originally instituted. The trial court while passing the impugned order legally exercised its jurisdiction vested in it an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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