Patna High Court
Basant Lal Jain And Ors. vs Union Of India (Uoi) And Ors. on 30 April, 1965
Equivalent citations: AIR1965PAT426, AIR 1965 PATNA 426
JUDGMENT
1. This appeal by the plaintiffs arises out of a suit for recovery of a sum of Rs. 1,072/- as damages for non-delivery of a consignment of fourteen bags of green ginger.
2. The plaintiffs claim to be partners of a firm which carries on business under the name and style of Messrs Surajmal Naresh Kumar Jain at New Market in the town of Patna. Their case is that the pro forma defendant, Sekhar Chand Jain, despatched the consignment in question from Manipur Railway Station in Assam (Bengal Assam Railway) on the 17th February, 1951, to Hajipur Railway Station on the Oudh Tirhut Railway. Sekhar Chand Jain transferred the railway receipt to the plaintiffs. The ordinary time taken for a consignment from Manipur to reach Hajipur is about ten days. The consignment should, therefore, have reached Hajipur on or about the 27th February, 1951. The plaintiffs made a claim from the Oudh Tirhut Railway for a sum of Rs. 958/- on account of the price of the green ginger; but their claim was not satisfied.
The plaintiffs instituted Money Suit No. 32 of 1952 on the 26th February, 1952, for recovery of damages for non-delivery of the consignment in question. The suit was dismissed on the 20th March, 1956, on the ground that the suit was not maintainable under Section 69 of the Indian Partnership Act, 1932, inasmuch at the alleged firm of the plaintiffs was not a registered firm. The plaintiffs allege that they got the firm registered and obtained a registration certificate (exhibit 9) on the 5th May, 1956. On this basis, they filed the present suit on the 19th May, 1956.
3. The Munsif, who tried the suit, dismissed it by his judgment dated the 14th December, 1959. The plaintiffs took an appeal to the District Court, and it was heard by the 3rd Additional Subordinate Judge of Muzaffarpur, who dismissed the appeal. Hence, the plaintiffs have come up to this Court.
4. The learned Subordinate Judge has held that no notice under Section 77 of the Indian Railways Act has been served upon the defendants. In this connection, he has also held that the letter (exhibit 5) said to have been sent by the plaintiffs to railway authorities did not constitute a notice under the section. He has further held that Section 14 of the Limitation Act is not applicable to the facts and circumstances of this case, and that the suit is barred by limitation. He has also held that the plaintiffs have not established that they are persons who "have been shown in the Register of Firms as partners in the firm" within the meaning of Sub-section (2) of Section 69 of the Partnership Act, and as such, the suit must fail.
5. Mr. Satyanand Kumar, who has appeared on behalf of the plaintiff-appellants, has challenged all the above findings of the learned Subordinate Judge. It is unnecessary for me to consider all the points raised because it is clear that the plaintiffs must fail on the ground that they have not established that they are persons whose names have been entered in the register of firms as partners of the firm Surajmal Naresh Kumar Jain.
6. Some of the allegations made by the plaintiffs in the plaint in the new suit are that the present suit is not barred by the principle of res judicata because, the previous suit having been filed in contravention of Section 69 of the Partnership Act was no suit at all, and that, after the dismissal of the first suit, "they got themselves registered under the Indian Partnership Act". This allegation is rather vague. It is difficult to understand from the statement that the plaintiffs got the firm registered or that they got their own names registered as partners of the firm or both. In paragraph 6 of the written statement filed on behalf of the defendants, it was stated that the plaintiffs' firm is hot registered. One of the issues which were raised in the suit was whether the suit was maintainable in its present form. The learned Munsif considered the objection of the defendants on this point in paragraph 7 of his judgment, He thought that the registration certificate (exhibit 9) was enough for compliance with the provisions of Section 69 of the Indian Partnership (sic) I may here quote Sub-section (2) of Section 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".
It is manifest that two requirements are laid down by this sub-section. The first requirement is that the firm should be registered. The second requirement is that the persons suing should be shown in the register of firms as partners in the firm. I may mention that the firm is not a plaintiff in this suit. It has been brought by three persons claiming to be partners of the firm. While exhibit 9 shows that the firm is a registered one, it does not show that the names of the three plaintiffs are entered in the register of firms as partners of the firm. The learned Munsif was, therefore, wrong in thinking that exhibit 9 was enough to show that the plaintiffs had complied with Section 69 of the Indian Partnership Act. The point was, therefore, naturally raised before the learned Subordinate Judge in appeal. At the stage of arguments, the plaintiff-appellants filed a certified copy of the register, along with a list of documents. They did not file any application for taking that certified copy in additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. There was, therefore, no question of the document being admitted in additional evidence. Still the learned Subordinate Judge looked into the document and found that the addresses of the persons named in that document were different from those of the plaintiffs. It seems to me, however, that he need not have looked into the document when it was not a piece of evidence in the case. He rightly held that it had not been established that the plaintiffs were shown in the register of firms to be members of the firm in question, and hence the suit was not maintainable in view of Section 69 of the Indian Partnership Act. All that Mr. Satyanand Kumar has argued in this connection is that the fact that the names of the plaintiffs were entered in the register was not challenged by the defendants. As I have already shown, the plaintiffs made only a very vague statement in their plaint about the registration. It could be construed as being an allegation that the firm was registered, and the defendants denied that allegation. As the plaintiffs did not specifically state that their names were entered in the register, the defendants were not called upon to admit or deny such an allegation. Besides, there is nothing in 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 are entered in the register. That being so, their suit has rightly been dismissed on this ground alone.
7. No ground for interference has been made out. The appeal is, therefore, dismissed.
The parties will bear their own costs of this Court.