Karni Kumar Khatri vs Assam Motor Finance Company

S. Haque, J.—None appears for the opposite party. Heard Learned Counsel Mr. T.C. Khatri on behalf of the defendant-petitioner. The defendant petitioner impugned the order, dated 7.12.1985 passed by the Assistant District Judge No. 1 Gauhati in Title Suit No. 57 of 1984 dismissing the suit on withdrawal with liberty to the plaintiff to institute a fresh suit on the same cause of action.

Learned Counsel Mr. Khatri submits that the suit of the opposite party plaintiff was defective ab initio for non-registration of the plaintiff firm and so, the defect alleged in the withdrawal application was not a formal defect for granting liberty to institute fresh suit.

The Opposite Party-plaintiff instituted the title Suit No. 57 of 1984 claiming it was a partnership-firm registered under the Indian Partnership Act, 1932. The petitioner-defendant contested the suit by filing written statement and counter-claim. At the hearing stage, the plaintiff filed application under the provision of Order XXIII Rule 1(3)(a) for withdrawal of the suit for formal defect on the ground that the plaintiff-firm was not registered under the Indian Partnership Act as stated in the plaint. The court passed the impugned order.

The plaintiffs-firm was not registered u/s 59 of the Partnership Act, so, it suffered from legal disability to enforce right arising from the contract stated in the plaint to institute a suit against the petitioner defendant by operation of Section 69(2) of the Partnership Act. The defect in the suit had effected the merit of the suit. Non-registration of a partnership firm is not a formal defect, but it is a defect affecting the merit of the suit at the root and so the liberty to institute a fresh suit on the same cause of action under Order XXIII Rule 1(3)(a), cannot be granted.

(Relied Ramrao Bhagwantrao Inamdar Vs. Babu Appanna Samage, ; Seth Loonkaran Sethiya and Others Vs. Mr. Ivan E. John and Others, and AIR 1916 Ori 1, Khatuna and Ors. v. Ramsewak Kashinath).

In view of the facts in the case and relying the above decisions, the portion of the impugned order granting liberty to institute a fresh suit was without jurisdiction as the defect shown in the suit was not a formal defect.

Accordingly, this revision is allowed. That Portion of the impugned order granting liberty to institute a fresh suit on the same cause of action is hereby set aside.