Patna High Court
J. Purshuttam Das And Co. vs R.R. Brothers And Ors. on 5 December, 1972
Equivalent citations: AIR1973PAT300, AIR 1973 PATNA 300
JUDGMENT Shambhu Prasad Singh, J.
1. This second appeal by the plaintiff, a firm, arises out of a suit for recovery of Rs. 5,668.81 p. as unpaid portion of the price of Bin tobacco supplied on credit and Rs. 2,712.32 p. as interest thereon at the rate of Re. 1/- per cent, per month and Rs. 16.75 p. as the cost of pleader's notice, the total claim being Rs. 8,397.98 p. The question of law which arises for decision in this appeal is whether the suit has rightly been dismissed by the courts below on the ground that it is barred under Section 69 (2) of the Indian Partnership Act (hereinafter referred to as 'the Act') for the reason that the plaintiff failed to bring on the record before the trial Court documentary evidence showing that the partners of the firm as constituted on the date of the institution of the suit were shown in the Register of Firms. Both the courts below have dismissed the suit on the aforesaid ground. An application was filed before the lower appellate Court for taking as additional evidence a certified copy of the Register of Firms but that was rejected. In this Court too a similar application has been filed.
2. The case of the plaintiff is that it is a firm dealing in Biri tobacco with its head office at Phulauriganj at Patna City and during the period 27-10-54 to 4-4-1956 it supplied Biri tobacco to defendant No. 1, another firm at Kishanganj in the district of Purnea. Defendants Nos. 2 and 3 are said to be the partners of that firm. The articles supplied during that period were worth Rs. 37,611.03 p. of which the defendants paid only Rs. 31,942.22 p. The balance of Rs. 5,668.81 p. remained unpaid.
3. Defendant No. 2 is father of defendant No. 3. According to him. he had no concern with the firm, defendant No. 1, and defendant No. 3 was the sole proprietor thereof. Defendants Nos. 1 and 3 in their written statement averred that the suit was barred by limitation and also by Section 69 of the Act. They also denied their liability for the entire amount as claimed by the plaintiff and challenged the plaintiff's claim for interest on the ground that there was no contract for it. According to them, the contract etc. were entered into and finalised at Purnea and, therefore. Patna courts had no jurisdiction to entertain the suit.
The trial Court held that the suit was not barred by limitation and could be entertained by the court at Patna. It further held that the plaintiff was entitled to recover Rupees 5.668.81 P. as claimed by it, but it was not entitled to interest till 10-12-1961. It was entitled to interest only from 11-12-1961, the date on which the defendant received the pleader's notice demanding principal with interest. It however, held that the suit was not maintainable in view of the mandatory provisions of Section 69 (2) of the Act. The lower appellate Court has confirmed all these findings of the trial Court. It may be stated here that the plaintiff-appellant did produce in the trial Court evidence showing that the firm was registered, The suit was held barred under Section 69 (2) of the Act merely because it failed to produce copy of the Register of Firms showing who were shown therein as Partners of the firm.
In this Court, learned counsel for the appellant has conceded that the courts below have rightly disallowed interest till 10-12-1961. Learned counsel for the respondents has also not challenged any of the findings of the courts below against them. Thus, no other question except as stated in the opening paragraph of this judgment arises for decision in this appeal.
Section 69 (2) of the Act reads as follows:
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."
Mr. J. C. Sinha appearing on behalf of the appellant has contended that Section 69 (2) of the Act is to be read together with Order 30 of the Code of Civil Procedure (hereinafter referred to as 'the Code') and in cases where the defendants do not claim a disclosure as required by Order 30, Rule 2 of the Code from the plaintiff as to who the partners of the firm were on the date of the institution of the suit the suit cannot be dismissed on the ground that the plaintiff has failed to produce Register of Firms to prove that partners in the firm as constituted on the date of the institution of the suit were shown therein. He has further contended that even oral evidence to prove that they were shown in the Register of Firms is admissible and in cases where there has been no change in the constitution of the Firm between its registration and institution of the suit, an inference can be drawn from the certificate of registration itself that all the partners in the firm are shown in the Register of Firms. On the other hand. Mr. K. D. Chatterjee for the respondents has contended that Register of Firms being best evidence to prove that all the partners in the firm as constituted on the date of the suit are shown therein must be produced in court and as the plaintiff failed to do that, its suit must be held not maintainable for non-compliance with the mandatory provisions of Section 69 (2) of the Act. However, he concedes that Register of Firms being a public document, certified copy of entries therein are as good evidence as the original register itself.
7. The judicial opinion on the question as expressed in the decision of different High Courts of this country are divergent and before expressing my own opinion on the question. I propose to examine various cases cited before us in support of their respective contentions by learned counsel for either party. I would first take up the cases which support the contention of learned counsel for the appellant. In Sardar Singar Singh and Son v. Sikri Brothers, AIR 1944 Oudh 37 a Bench consisting of Thomas. C. J. and Ghulam Hasan, J. (as he then was) held that where a registered firm sues as the plaintiff in the case and the title does not show that any partners by name were suing the second portion of Sub-section (2) of Section 69 of the Act is not directly applicable to the case. In that case, the suit was instituted in the name of the firm through one of its partners and manager. That partner described himself as plaintiff under his signature in the plaint and as "manager and partner general attorney" in the verification. The defendants pleaded bar of Section 69 of the Act on the ground that the firm was not registered and also challenged the right of partner who had signed as plaintiff to sue. It was held by the subordinate courts that the firm was a registered one and the person who had signed the plaint as partner and manager was not shown in the Register of Firms as a partner in the firm, but it was further held that though he could not bring the suit as partner of the firm, he could maintain the suit as its manager. Their Lordships held that as the cause title of the plaint did not show that partners by name were suing, introduction of the word 'partner' in the plaint after the name of the manager was mere surplusage and. therefore, second portion of Sub-section (2) of Section 69 of the Act was not directly applicable to the case.
8. In Ram Kumar Ram Chandra v. The Dominion of India. AIR 1952 All 695 Wali Ullah and P. L. Bhargava, JJ. have held that even though a firm has got no legal entity and as a firm it is not entitled to institute a suit, a suit can be filed by the firm in accordance with the provisions contained in Order 30 of the Code and when such a suit, is instituted in the name of the firm it is really a suit by the partners of the firm collectively and that description of the firm "through ......" was surplusage. They have further held that the firm being in fact the plaintiff and it being registered under the Act, provisions of Section 69 (2) of the Act were complied with and hence the plaint could not be rejected for want of a copy of the Register of Firms showing the person through whom the firm sued ,as its partners. They relied on the aforesaid decision in Sardar Singar Singh's case. AIR 1944 Oudh 37.
9. Relying on the two decisions referred to above a learned Single Judge of Hyderabad High Court in Firm Sunkari Yadgiri and Co. v. Union of India. AIR 1954 Hyd 172 has held that under Sub-section (2) of Section 69 of the. Act it is not incumbent on the plaintiff firm to produce the extract of the register of the firm showing the plaintiff to be a partner and that mere production of a certificate showing the registration of the firm is sufficient even in a case when a firm is suing a third party. In this case the suit was instituted in the name of the firm under Order 30, Rule 1 of the Code.
10. In M. J. Velu Mudaliar v. Sri Venkateswara Finance Corporation, AIR 1971 Andh Pra 63, the question has been examined at great length by Parthasarthi, J. He examined almost all the decisions for and against the question under consideration and I am tempted to quote one of the paragraphs from his judgment in extenso.
"In construing the provisions of Section 69 (2) one should bear in mind the procedure contemplated by Order 30 for the institution of suits by or against firms. Rule 1 of the Order 30 enables a suit to be filed in the name of the firm and any party to a suit may in such a case apply to a court for a statement of the names and addresses of the persons who were at the time of the accruing of the cause of action partners in such firm. If an application in that behalf is made the particulars have to be furnished and verified in such manner as the court may direct. Sub-rule (2) says that where persons sue as partners in the name of the firm, any pleading or other document required by the Court to be signed, verified or certified by the plaintiff or the defendant may be signed verified or certified by any one of the partners suing in the name of the firm. The expression "suing as partners" occurring in Section 69 (2) of the Partnership Act must be read and understood in the light of the provisions of Order 30. It is not unreasonable to infer that the requirement contemplated by the later part of Subsection (2) of Section 69 was intended to come into play only in cases where a disclosure of the names and particulars is called for in accordance with the provisions of Order 30. I am inclined to think that the conjunction 'and' in Section 69 (2) has to be construed in the disjunctive sense. The context in which the conjunction is used seems to imply that the legislature used it in a disjunctive sense. If Sub-section (2) is to be read as prescribing the two pre-conditions in all cases of suits brought in the name of the partnership firm the provisions of Order 30 may be rendered nugatory, or ineffective. But if the conjunction 'and' is construed in a disjunctive sense, and is read as 'or' the later part of Sub-section (2) of Section 69 would come into play only in those cases where a disclosure of the names and particulars is made under Order 30, Civil Procedure Code."
The learned Judge has further held that mode of proof of the fact that names of all the partners of the firm are entered in the Register of firms is not in any way restricted and it is open to the plaintiff to prove that by evidence other than the entry in the Register of Firms itself. The decree passed by the Subordinate Court in the suit instituted in the name of the firm represented by three persons describing as managing partners was upheld by his Lordship even though entry in the Register of Firms showing their names was not brought on the record.
11. Before considering decisions which do not support the contention of appellant's learned counsel directly. I propose to take up oases which support the contention of learned counsel for the respondents. In Kapurchand Bhagaji Firm v. Laxman Trimbak, AIR 1952 Nag 57, the order of the Subordinate Court dismissing the suit on the ground of non-compliance of the second part of Section 69 (2) of the Act was upheld by a learned Single Judge. The managing partner of the firm whose name was mentioned in the plaint and who had examined himself as P.W. 1 had admitted in oral evidence that there we re three partners in the firm. The entry in the Register of Firms showing their names was not proved either by production of the original or certified copy. According to the learned Judge, it could not be proved by secondary evidence in the suit and the suit, therefore, was not maintainable.
12. In Bank of Koothattukulam v. Itten Thomas, AIR 1955 Trav-Co 155 the order of dismissal of the suit of the court below on the ground that it was not maintainable as the firm was not registered on the date of the institution of the suit was upheld. In the case before us we are not concerned with the question whether the registration of the firm subsequent to the institution of the suit can cure the defect. Casually it was also observed that compliance of the second part of Section 69 (2) of the Indian Partnership Act was mandatory.
13. In Dr. V. S. Bahal v. Kapur and Co., AIR 1956 Punj 24, a Bench of Punjab High Court dissented from the decision of Oudh Chief Court in Sardar Singar Singh's case AIR 1944 Oudh 37 and held that where the suit at the time of its institution suffered from the defect that one of the partners of the firm who had been a partner for several years had not at the time of the institution of the suit been shown in the Register of Firms as a partner, the suit was barred under Section 69 (2) of the Act. The learned Judges further held that removal of the defect pendente lite would not make the suit maintainable.
14. In Hansrai Manot v.
Gorak Nath Champalal Pandev (1962) 66 Cal WN 262 a learned Judge of the Calcutta High Court sitting singly has held that the word 'and' in Section 69 (2) of the Act cannot be interpreted to mean 'or' and on the plain meaning of that, sub-section, if a firm institutes a suit, both the conditions namely, the registration of the firm and the entry of the names of the partners of the firms in the Register of Firms must be satisfied even if the suit is on behalf of the firm as these two conditions are mandatory and cumulative.
15. In Firm Buta Mal Dev Raj v. Chanan Mal, (AIR 1964 Punj 270), Falshaw, C. J. and Harbans Singh, J. have held that when a suit is instituted in the name of a firm, the suit is on behalf of all the partners and not only such of them as are shown in the Register as such and, therefore, if the firm constituted of partners more than as shown in the Register of Firms, the suit must fail as not maintainable under Section 69 (2) of the Act. They dissented from a Bench decision of this Court in Chaiman Lal v. Firm New India Traders Mica Merchants. AIR 1962 Pat 25 to which I shall refer subsequently. It is not clear from the facts of the case whether any disclosure of the names of the partners as contemplated by Rule 2 of Order 30 of the Code was claimed for by the defendants in that suit.
16. Learned counsel for the respondents strongly relied on the Bench decision of Gujarat High Court in Bharat Sarvodaya Mills Co. Ltd. v. Mohatta Brothers a Firm. AIR 1969 Guj 178 which is also a decision in which the question has been considered at length. Learned Judges after examinins a good number of decisions held that the word 'and' in Section 69 (2) of the Act was used in conjunctive sense and not in disjunctive sense. They also dissented from the aforesaid decision of this Court in Chaiman Lal's case AIR 1962 Pat 25. With reference to the facts of that case it has, however, to be noted that the suit was filed in the name of the firm and the plaint was signed and verified by one partner Shiv Ratan G. Mohatta and that in the written statement a specific plea was taken that the plaintiff firm could not maintain the suit as constitution of the firm had been changed. In view of the great reliance placed by learned counsel for the respondents on this decision. I would like to quote one paragraph from it in ex-tenso.
"Now we would turn to Section 69 (2) of the Act which is the relevant section to be interpreted by us. Section 69 (2) runs as under.
'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.' Section 69 (2), therefore bars a suit against a third party if it is for enforcing a right arising from a contract. The bar equally applies both to suits by the firm as well as suits on behalf of the firm. Two mandatory requirements which must be fulfilled before such a suit can be filed to enforce a contractual right by the firm or on behalf of the firm (sic) and (2) that the persons suing are or have been shown in the Register of. Firms as partners of the firm. As the section creates a bar to the suit, the requisite conditions will have to be treated as mandatory conditions. Unless these two conditions are fulfilled there would be a fatal bar to the entire suit and it would be wholly incompetent in a court of law, A plain literal reading of the section shows that both these conditions are cumulative conditions as they have been joined by the conjunction 'and' and not by the disjunctive 'or'. We would consider in a moment the contention of Mr. Nanavati that the second condition is inapplicable by its nature to a suit by a firm. Prima facie, on a plain literal reading of Section 69 (2), both these mandatory conditions must be held to be cumulative conditions and tooth of them must be complied with to show that a suit to enforce a contractual right by or on behalf of a firm is maintainable against a third party. These two conditions are enacted for protecting a third party who enters into a contract with the firm. If the firm is registered and the partners acting for the firm have their names shown in the Register of firms: as partners in the firm the third party would have a complete protection when he enters into such a contract. Looking to the purpose underlying Section 69 (2), it is obvious that both these conditions must be cumulative conditions. If only a firm was registered and thereafter it was reconstituted by introduction of new partners unless the second condition is fulfilled, the third party would not have adequate protection as it could not check up whether they were partners of the registerd firm when such persons purport to act as a partner in the firm while dealing with the third party. Section 69 (2) creates a bar not only in oases where the suit is by the firm but also where the suit is on behalf of the firm. The suit by the firm can be filed as we have already discussed under Order 30, Rule 1, by bringing it in the name of the firm mentioning the firm- in the cause title and the plaint being verified by one of the partners at the time of accrual of the cause of action. The suit on behalf of the firm can be filed equally by all the partners who are compromisees and all of whom are under Section 45 of the Indian Contract Act, 1872, joined together in enforcing the promise against a third party promisor. The suit by a firm as we have already discussed, is only a procedural provision for the purposes of the firm of the suit, but in reality even a suit by the firm Is a suit by all the individual partners at the time of accrual of the cause of action. Therefore, there would be no rhyme or reason for the Legislature to provide two different conditions when the suit is by a firm or when the suit is by individual partners merely because for the sake of convenience in filing a suit a different procedure was laid down in Order 30 to enable a firm to bring a suit in the Firm name. Therefore, on a plain literal construction we must hold that in both the cases where the suit is by a firm or on behalf of the firm both of these mandatory conditions must be cumulative conditions."
17. At this stage I would like to refer to a Bench decision of this Court in AIR 1962 Pat 25. It appears from the facts of the case that the firm was registered only with two partners. Three more partners became partners of the firm subsequent to the registration and in the plaint itself it was stated that on the date of the institution of the suit the firm constituted of five partners. They did not care to get their names entered in the registration certificates as partners. It was argued that in such circumstances the suit in the name of the firm was not maintainable. Their Lordships held-
"But, there is nothing in the Partnership Act to indicate that in such a contingency the suit shall fail. Section 69 (2) of the Act lays down that no suit to enforce a right arising from a con-
tract shall be instituted 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. This has, however, to be read with Order 30, Rule 1 of the Code of Civil Procedure. These provisions read together apparently, mean that when a suit is instituted in the name of a registered firm, only those persons who are registered as partners of the firm can get the benefit of a decree in favour of the firm or shall be liable for a decree against the firm. Subject to these conditions, the suit is maintainable, and for purposes of this suit only Chand Mull and Satya Narain Sarda, who are registered in the registration certificate shall be deemed to be partners of the plaintiff firm."
As observed earlier. Punjab High Court and Gujarat High Court have dissented from this decision as, in the opinion of the learned Judges of those Courts, the decision was not correct. For the reasons which I shall state hereafter, in my opinion, the decision is correct and it was rightly held that the suit was maintainable. However. I doubt the correctness of the observations.
"When a suit is instituted in the name of a registered firm, only those persons who are registered as partners of the firm can get the benefit of a decree in favour of the firm or shall be liable for a decree against the firm".
But, the correctness of the decision does not depend on these observations.
18. There is another decision by a learned Single Judge of this Court in Basant Lal Jain v. Union of India (AIR 1965 Pat 426) which according to the submission of learned counsel for the parties partially supports the contention of learned counsel for the appellant and partially that of learned counsel for the respondents. The suit was not instituted in the name of the firm. It was instituted by the partners of course stating that they were partners of the firm. The suit was dismissed by the trial Court and appeal against that decree was also dismissed by the lower appellate Court which held that as the plaintiffs failed to establish that they were persons who were shown in the Register of Firms as partners in the firm within the meaning of Sub-section (2) of Section 69 of the Act, the suit must fail. As the value of the suit was less than Rs. 1000/-. a civil revision was filed in this court and it refused to interfere with the decree of the lower appellate Court. The learned Single Judge held that provision of Section 69 (2) of the Act was mandatory. It was urged by learned counsel for the petitioner that the defendants did not challenge that the names of the plaintiffs were entered in the Register of Firms. The argument was rejected on the ground that the plaintiffs did not specifically state that their names were registered in the Register and, therefore, the defendants were not called upon either to admit or deny such an allegation. It was further observed that besides there was nothing on the record in the absence of the document filed by the plaintiffs at the time of arguments in the court below to show that the plaintiffs' names were entered in the Register. It is this observation on which learned counsel for the appellant before us has relied and submitted that according to this decision, other evidence was also admissible to prove the fact that the plaintiffs' names were entered in the Register of Firms. In my opinion, if it is held that a suit instituted in the name of the firm must fail if it is not, shown that names of the partners have been entered in the Register of Firms, then the fact of entry in the Register cannot be proved by evidence other than the Register itself or certified copy thereof unless it is proved that the Register has been destroyed or not available and secondary evidence of the contents thereof is admissible in accordance with the provisions of the Indian Evidence Act. The observation in this case by the learned Single Judge was mere casual and it cannot be given the meaning assigned to it by learned counsel for the appellant.
19. Reliance has been placed on the decision of the Supreme Court in Purushottam Umedhbhai and Co. v. Manilal and Sons (AIR 1961 SC 325), by learned counsel for the appellant on that portion of the judgment where it has been held that when the suit was instituted in the name of the firm, omission of some of the partners was mere misdescription and suit would not be barred by limitation if the defect was removed by adding the name of the partner after the expiry of the period of limitation. The plaintiff firm was carrying on business at Singapore and not in India. Therefore, provisions of Order 30 of the Code in terms were not attracted to the suit. Learned counsel for the respondents has relied on the observation in this judgment of the Supreme Court that suit by or against a firm is a suit by or against all the partners of the firm. In my opinion, this decision of the Supreme Court is of no help to either of the parties, inasmuch as their Lordships were not considering the scope and effect of Section 69 (2) of the Act
20. Learned counsel for the respondents has also placed reliance on the Full Bench decision of this Court in Smt. Fula Devi v. Mangtu Maharaj (AIR 1969 Pat 294) (FB). This decision was given in relation to Section 4 of the Bihar Moneylenders (Regulation of Transactions) Act, 1939. hereinafter referred to as 'the Bihar Moneylenders Act' and it was held that in view of the fact that under the first paragraph of Section 4 of that Act. The onus to prove as a matter of law that the suit for recovery of loan was entertainable under that section without registration was on the plaintiff. Learned counsel for the respondents has cited this decision in support of his contention that it is for the plaintiff firm to establish that names of the partners of the firm as constituted on the date of the institution of the suit have been entered in the Register of Firms irrespective of the fact whether the defendants raised that plea in their written statement or not. That decision also, in my opinion, is not of any real help to the respondents firstly for the reason that while Section 4 of the Bihar . Money-lenders Act starts with the words 'No court shall entertain a suit' there are no such words in Section 69 of the Act. The language used in Sections 69 (1) and 69 (2) is 'No suit ... shall be instituted in any court'. It is, therefore, possible to contend that while Section 4 of the Bihar Money-lenders Act. like Section 3 of the Indian Limitation Act casts a duty on the court itself irrespective of pleadings of the parties to find out whether the suit can be entertained or not. the investigation as to registration of firm and entry of the names of the partners thereof in the Register of Firms will depend on the pleadings of the parties. In case these facts are asserted and they are not denied in the written statement, no evidence need be led on behalf of the plaintiffs firm in support of those allegations. Even assuming that Section 69 of the Act also casts a similar duty on courts as is cast by Section 4 of the Bihar Moneylenders Act, in my opinion, on the language of Section 69 (2) itself all suits filed in the name of the firm or even in the names of the partners cannot fail on the ground that names of the partners have not been shown in the Register of Firms. As it appears from the provisions of Chapter V of the Act, new partners may be introduced in the firm and existing partners may also go out of it either by retirement or by expulsion or by insolvency or by death. In such cases, the firm is not dissolved ipso facto. Whether the firm will be dissolved or not will depend on the terms of the contract between the partners at the time of the constitution of the firm. Section 63 of the Act which provides for notice to the Registrar of any change in the constitution of a registered firm does not say that whenever any change takes place in the constitution of the firm by going out of a partner or coming in of a new partner, a notice of that fact shall be given to the Registrar. The expression used In this section is 'may give notice to the Registrar of such fact'. Therefore, it is not obligatory on the members of the firm to give notice to the Registrar of the change in the constitution of the firm by going out of a partner or coming in of a new partner. Now, the language used in Section 69 (2) is 'the persons suing are or have been shown in the Register of Firms as partners in the firm'. Both 'are' and 'have been' are in present tense. Of course, the former in the present imperfect and the latter in the present perfect continuous tense. If the intention was that the suit must fail in case all the partners constituting the firm on the date of the institution of the suit are not shown in the Register of Firms as partners in the firm, there was no necessity of using 'are' or 'have been' two verbs in the same clause. In my opinion, the requirements of Sub-section (2) of Section 69 are that it must be established firstly that the firm is registered one, and secondly either where all the partners sue. They are in fact partners of the firm on the date of the institution of the suit irrespective of the fact whether their names are shown in the Register of Firms or not, or where the suit is not by all, but only some of the partners, their names have been entered in that Register. In other words, where the suit is not in the name of the firm itself but in the name of the partners, it can be instituted either by all the partners irrespective of the fact whether their names are shown in the Register of Firms or not, or by such of the partners only of the firm whose names have been shown in the Register of Firms. Results in suits on behalf of such of the partners only whose names are shown in the Register of Firms will bind the firm, i.e.. all the partners even those who have not cared to get their names entered in the Register of Firms by giving notice to the Registrar under Section 63 of the Act. Therefore, where the suit is by the firm itself or by all the partners of the firm, it is not necessary to establish that names of all the partners of the firm have been shown in the Register of Firms. Only when only some of the partners of the firm institute a suit on behalf of the firm and an objection is taken by the defendants that they do not by themselves alone constitute the firm on the date of the institution of the suit, they can claim that the suit is maintainable on account of the fact that they alone have been shown in the Register of Firms as partners of the firm.
21. The view taken by me is supported by the decision of a learned Single Judge of Mysore High Court in M. A. Hussain v. Panchamal Vasu-dev Ganapath Kamath and Bros. (AIR 1970 Mys 299) in the following passage:--
"It is clear from this provision that there are two alternatives available in the second condition. The persons suing may establish either that they are partners on the date of suit or that they are persons whose names are shown in the register of firms as partners in the firm. As already observed, the second alternative, namely, the fact that the names of the persons suing have been shown in the Register of Firms as partners of the firm can be established either by producing relevant Register of Firms or a certified copy of the same and not by adducing oral evidence. But there is no legal bar to prove the first alternative, namely, that the persons suing are partners of the firm by adducing evidence other than the Register of Firm or its certified copy. It appears that pointed attention of the court has not been invited to the first alternative of the second condition in above referred case decided by the Nagpur High Court, In ray opinion, the persons suing must either in fact be partners on the date of suit or must be persons whose names are shown as on the date of suit in the Register of Firms as partners of the firm. Even if the names of the partners suing have not yet been entered in the Register of Firms, they can still institute the suit by proving that they are in fact partners of the firm on the date of suit. That can only be proved by evidence other than the Register of Firms."
I say with respect that interpretation put by learned Single Judge of Mysore High Court on second condition of Section 69 (2) of the Act is correct. This view is also supported by the Bench decision of this Court in Chaiman Lal's case. AIR 1962 Pat 25 already noticed earlier holding that a suit on behalf of the firm only by the partners whose names have been shown in the Register of Firms is maintainable. However, as observed earlier the result in a suit Instituted on behalf of the firm by such partners whose names have been shown in the Register of Firms will bind the firm and all the partners in the firm.
22. The Indian Partnership Act was enacted in the year 1932. The pro-
visions of the Indian Contract Act which were repealed by the Act and which governed the law relating to partnership in this country before 1932 contained no provision similar to Section 69 of the Act. Order 30 of the Code of Civil Procedure was already there. The framers of the Act did not consider it necessary to repeal or modify any part of Order 30 of the Code. Rule 2 of Order 30 of the. Code runs as follows:
"2 (1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted.
(2) Where the plaintiffs or their pleader fail to comply with any demand made under Sub-rule (1), all proceedings in the suit may, upon an application for that purpose. be stayed upon such terms as the Court may direct.
(3) Where the names of the partners are declared in the manner referred to in Sub-rule (1) the suit shall proceed in the same manner, and the same consequences in all respects shall follow as if they had been named as plaintiffs in the plaint.
Provided that all the proceedings shall nevertheless continue in the name of the firm."
According to it, when a suit is instituted in the name of the firm, the plaintiff need not disclose who are partners of the firm either in the plaint itself or subsequently thereafter unless a demand for disclosure as contemplated by this rule is made by or on behalf of any defendant. If the interpretation put on second condition of Section 69 (2) of the Act by learned counsel for the respondents is accepted, then in each case the plaintiff firm shall have to disclose names of all the partners constituting the firm on the date of the institution of the suit and to prove that their names are shown in the Register of Firms irrespective of the fact whether there is any demand in writing by or on behalf of any defendant for disclosure of the names of the partners. In other words. Rule 2 of Order 30 of the Code will be rendered nugatory. It is not possible to think that the framers of the Act were not aware of Rule 2 of Order 30 of the Code, and if they would have intended to make it nugatory by enacting the second condition in Section 69 (2) of the Act, they would have very well repealed it. This also shows that the view taken by me earlier as to scope of Section 69 (2) of the Act is correct and the interpretation put upon It by learned counsel for the respondents is not correct. I respectfully disagree with the view taken in the decisions which support his contention. In my opinion, as it has been proved that the firm was registered, the suit instituted by it cannot be held to have been barred under Section 69 (2) of the Act on the ground of non-production of the original or certified copy of the entry in the Register of Firms showing that all the partners who constituted the firm on the date of the institution of the suit are shown therein as partners in the firm, when the defendant did not make any demand from the Plaintiff for disclosure of partners' names. Further, there is oral evidence on the record to show that all the partners who constituted the firm on the date of the institution of the suit are partners in the firm and. therefore, the second condition of Section 69 (2) of the Act is also satisfied.
23. Now I will proceed on the assumption that the interpretation put by learned counsel for the respondents on Section 69 (2) of the Act is correct. In that case I feel that it is necessary In the ends of justice and to enable us to pronounce judgment in the case to take as additional evidence the certified copy of the entry in the Register of Firms showing that names of all the partners who constituted the firm on the date of the institution of the suit are entered in it as partners in the firm. Let this be marked as Ext. 7. As we ourselves think that it is necessary to take that document as additional evidence to enable us to pronounce judgment in the case other provisions of Order 41, Rule 27 of the Code, as emended by this Court, will not be a bar to baking that document in evidence. There is absolutely no merit in the observation of the lower appellate Court that as the document shows Chandu Bhai Patel as partner of the firm and not Chandu Bhai Mani BhaS Patel as claimed in the suit, it is of no help to the plaintiff-appellant Mani Bhai is the name of the father of Chandu Bhai who is the partner and that has been added to his name in the suit according to the custom prevailing in that part of the country to which he belongs. The court of appeal below has committed an error of record in observing that Chandu Bhai Patel ceased to be a partner of the firm on 5-10-1960 before the institution of the suit. This document proves that all the partners who constituted the firm on the date of the institution of the suit have been shown in the Register of Firms and fulfils the requirement of second condi-
tion of Section 69 (2) of the Act as interpreted by learned counsel for the respondents.
24. In the result. I would allow the appeal, set aside the judgments and decrees of the courts below and decree the plaintiff's suit as against defendant Nos. 1 and 3 for recovery of a sum of Rs. 5,668-81 P. as unpaid portion of the price of Biri tobacco supplied on credit to them with interest at the rate of 12 per cent, per annum from 11-12-1961 to the date of the institution of the suit and 6 per cent, per annum pendente lite and future from the date of the; institution of the suit till its realisation. The plaintiff-appellant shall also be entitled to a decree for Rs. 16-75 P. as cost of pleader's notice over and above the aforesaid amount together with pendente lite and future interest at the rate of 6 per cent, per annum from the date of the institution of the suit till the realisation of the decree, and costs of the suit throughout.
Mukherji, J.
25. I agree.