IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 318 of 1999 Date of Decision : August 16, 2010 Lekh Ram @ Kannu Ram Appellant Versus Smt. Lajya and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellants : Mr. Ramakant Sharma, Advocate with Ms. Devyani Sharma, Advocate, for the appellant. For the respondents : Mr. N. K. Thakur, Advocate, for the respondents. Sanjay Karol, J. (Oral) In this Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, defendant Sh. Lekh Ram has assailed the concurrent findings of fact recorded by the Courts below. 2. Civil Suit No. 75/1 of 1995/1992 filed by plaintiff Sh. Parma Nand stands decreed by the learned Sub Judge Ist Class, Nalagarh, District Solan, H.P. in terms of its judgment and decree dated 12.6.1998. In the defendant’s Civil Appeal No. 28-NL/13 of 1998 the same also stands affirmed by the learned Additional District Judge, Whether reports of Local Papers may be allowed to see the judgment? 2 Solan, Camp at Nalagarh, H.P. in terms of judgment and decree dated 20.4.1999. 3. The present appeal was admitted on the following substantial questions of law No. 1, 3 and 4:- 1. Whether the judgment and decree under challenge is the result of complete misreading, misinterpretation as well as misappreciation of the provisions of Section 69(3) of the Indian Partnership Act? 3. Whether the judgment under challenge is the result of non-consideration of Exts. DW2/A, DW3/A and Ext. D1? 4. Whether the suit of the plaintiff is maintainable in the absence of necessary party to the alleged partnership firm as per the documents Ext. PW5/B? 4. Partnership Deed Ext. PW 5/A evidences the fact that plaintiff and defendant had entered into a partnership on 8.2.1990. There is no dispute that the said deed is not registered. 5. Plaintiff filed suit for dissolution of the firm and rendition of accounts. The defendant contested the same denying the plaintiff to be partner in the firm. 6. On the pleadings of the parties following issues were framed by the trial Court:- “Issue No. 1 Whether the parties did enter into partnership on 8.2.1990 and formed a firm known as M/s Lekh Ram Parma Nand as alleged? OPP 3 Issue No. 2 If issue No. 1 is proved in affirmative whether the plaintiff is entitled to the rendition of accounts as claimed? OPP Issue No. 3 Whether the plaintiff has a cause of action? OPP Issue No. 4 Whether the partnership deed is bad for want of registration. If so, its effect? OPD Issue No. 5 Whether the plaintiff is estopped from filing the present suit by his act and conduct: OPD Issue No. 6 Whether the writing dated 11.3.1992 is forged and fabricated as alleged? OPP Issue No. 7 Whether this suit is not maintainable as alleged? OPD Issue No. 8 Whether the plaintiff has locus standi to sue? OPP Issue No. 9 Relief.” 7. The trial Court decreed the plaintiff’s suit and in terms of the deed of partnership (Ext. PW 5/A) dated 8.2.1990 was held entitled to half share of the assets of the firm. 8. Section 69 of the Indian Partnership Act, 1932 (hereinafter referred to as the Act) reads as under: 69. Effect of non-registration.--- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm 4 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. (3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect,--- (a) The enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or (b) The powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920 to realise the property of an insolvent partner. (4) This section shall not apply,--- (a) To firms of to partners in firms which have no place of business in [the territories to which this Act extends], or whose places of business in [the said territories], are situated in areas to which, by notification under [Section 56], this Chapter does not apply, or (b) To any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in Section 19 of the Presidency Small Cause Courts Act, 1882, or outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, or to any proceedings in execution or other proceeding incidental to or arising from any such suit or claim. (Emphasis supplied) 9. Keeping in view the provisions of sub-section (3) of Section 69 of the Act it cannot be said that the Court below has mis-interpreted or mis-appreciated the provisions of Section 69(3) of the Act. The provisions are clear and unambiguous. The plaintiff’s suit is clearly maintainable. While taking this view I am fortified by the view taken 5 by different Courts in D. C. Upreti versus B. D. Karnatak, AIR 1986 Allahabad 32; Jagat Mittar Saigal versus Kailash Chander Saigal and another, AIR 1983 Delhi 134; Sheoram Sitaram Patil versus Atmaram Raghoji Patil, AIR (30) 1943 Nagpur 13 and Jhandu Mal and others versus Rulia Ram, AIR 1937 Lahore 633. 10. In fact in V. Subramaniam versus Rajesh Gaghuvandra Rao, (2009) 5 SCC 608 the Apex Court struck down the amendment carried out by virtue of the Maharashtra Amendment Act 29 of 1984, whereby in terms of sub-section (2-A) restriction was introduced and registration of the partnership firm even in cases where exception was carved out under Section 69 of the Act was made compulsory. The question of law is no longer res-integra. 11. Ext. D-1, Ext. DW 2/A and Ext. DW 3/A are nothing but documents evidencing the fact that certain monetary transactions had taken place between and on behalf of the parties. By no imagination can the said documents be construed to even prima facie show that relationship between the parties was not that of partners but of master-servant or agent-principal. In fact, as has been held by the lower appellate Court the defendant himself admitted the execution of the partnership deed. In this background documents Ext. DW 2/A and Ext. DW 3/A become irrelevant. Document Ext. D-1 negates the defendant’s contention. 12. No issue of suit being not maintainable for want of necessary parties was framed by the Court below. Hence at this stage the defendant cannot be allowed to raise this question. Even factually, 6 as is evident from the partnership deed no other person was partner of the firm. 13. Hence the questions as framed do not arise for consideration at all. For all the aforesaid reasons the present appeal being devoid of any merit is dismissed. (Sanjay Karol), Judge. August 16, 2010 (PK)