ORDER
1. The petitioners who are third parties filed a petition before the lower Court under Order 1, Rule 10 and S. 151, C.P.C. to implead them as plaintiffs 2 to 5 in the suit. The respondents herein are the defendants in the suit. The learned District Munsif declined to grant permission to the petitioners to come on record on the ground that they have no locus standi to file the petition. Aggrieved against the said order of the learned District Munsif, the petitioners-third parties have filed the present revision petition.
2. The suit was filed for recovery of certain amount on the basis of khata by M/s. Pattabhi Enterprises against the respondents herein. The petitioner’s case is that they are blood relations, 1st petitioner being the wife and petitioners 2 to 4 being the sons of
A. Pattabhirama Rao who filed the suit as Managing Partner of Pattabhi Enterprises, that they are also the partners of the said firm along with Pattabhirama Rao and therefore they are also entitled to the amount. The petition was resisted by the defendants on the ground that the firm was not registered by the date of filing of the suit and its subsequent registration will not cure the defect and therefore, the suit itself is not maintainable.
3. Admittedly the suit was filed by the firm which was not registered at the time of filing the suit. But during the pendency of the suit, the firm was registered. The Court below considered the point and found that subsequent registration will not enure to the benefit of the third parties to contend that they are also entitled to come on record and the suit can be proceeded with without their being impleaded as plaintiffs.
4. The main contention of the learned counsel for the petitioners is that the, suit is defective for non-registration of the firm at the time of filing the suit and an issue was also framed with regard to the registration of the firm and the validity of the plaint and the same has not been decided in the petition, and they are entitled to come on record’ as plaintiffs 2 to 5.
5. The Gauhati High Court in Union of India v. Durga Dutt, AIR 1961 Assam 2, considering Sections 69(1) and (2) of the Partnership Act, held:
“Section 69(2) in terms prohibits the institution of the suit by a firm without registration. The words in Section 69(2) are mandatory and the suit instituted without obtaining registration of the firm is void and cannot be proceeded with. The subsequent registration of the firm will not validate the institution of the suit; Nor can the suit be deemed to have commenced on the date when the registration has been obtained.”
6. The short point for consideration in this revision petition is when a partnership firm has filed a suit without registration and when the registration took place during the pendency of the suit, the suit that has been
instituted can be allowed to be proceeded with or not.
7. It is true that on the date when the suit is filed, the firm was not registered. As early as in 1937 the Madras High Court had occasion to consider a similar question in Varadarajulu v. Rajamanlka, AIR 1937 Mad 767, wherein considering Section 69(2) of the Partnership Act, the learned Judge held :
“I agree with Mr. Krishnaswami lyer that the case of the plaintiff is not as strong as in the case just quoted, for S. 69(2), Partnership Act, embodies a principle of public policy intended to penalise partnerships which do not register. However, when the registration has been carried out, the requirements of the Legislature are fulfilled and there is no reason in equity why from the moment of registration a suil previously filed should not be allowed to go on. This suit is not of course one in which the subsequent act of registration validated the plaint from the date of its being filed; for no suit was maintainable before the date of registration. The most that the plaintiff can ask for is that his plaint should be treated as a valid one from the date of registration. A very similar case was considered by a Bench of this Court in Ramakrishna Nadar v. Thirumalai Vanda-yathevan, AIR 1936 Mad 24.”
8. The learned Judge also took into consideration that it would be most inequitable for the plaintiffs to have their suit dismissed and be forced to file another after paying fresh court-fee. The duty of the Court is to administer justice according to the principles of equity and good conscience, and it cannot be said to do this when it dismisses a suit because the formality of withdrawing a plaint and filing a fresh one in the same terms was not complied with. The only rider that can be placed is that instead of directing the party to file a fresh suit, the plaint that has already been filed shall be treated as a valid one from the date of registration of the firm under Section 69(2) of the Partnership Act. Following the decision of the Madras High Court in Varadarajulu’s case, (AIR 1937 Mad 767) (supra) the suit will be deemed to have been instituted on the date of the registration.
Hence the order of the lower Court is set aside, but the limitation starts from the date of registration of the firm but not from the date of filing of the suit and the defendants are at liberty to take the plea of limitation if any prior to the date of the registration of the firm”.
9. The civil revision petition is allowed accordingly. No costs.
10. Revision allowed.