IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 CRP.No. 440 of 2009() --------------------- OS.442/2004 of PRINCIPAL SUB COURT,ERNAKULAM .................... REVISION PETITIONER(S): DEFENDANTS: ------------------------------------------------------------- 1. GREATER COCHIN DEVELOPMENT AUTHORITY, COCHIN-682 020, REPRESENTED BY ITS SECRETARY. 2. THE SUPERINTENDING ENGINEER, GREATER COCHIN DEVELOPMENT AUTHORITY, COCHIN-682 020. BY ADV. MR.S.B.PREMACHANDRA PRABHU RESPONDENT(S): PLAINTIFF: -------------------------------------------- M/S. ENKON ENGINEERS & CONTRACTORS, MAMANGALAM CHURCH ROAD, COCHIN-682 025, REP.BY ITS MG. PARTNER, SRI. JOSEPH VILANGADAN, VILANGATTIL HOUSE, MAMANGALAM, COCHIN-682 025. BY ADV. MR.K.BABU THOMAS THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.2360/09 IN C.R.P.NO.440/2009 DISMISSED 21/08/2009 SD/- S.S.SATHEESACHANDRAN,JUDGE /TRUE COPY/ P.A.TO JUDGE Kss “C.R” S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.No.440 of 2009 - B --------------------------------- Dated this the 21st day of August, 2009 O R D E R Revision is directed against the order dated 26.6.2009 in O.S.No.442 of 2004 passed by the learned Sub Judge, Ernakulam. The defendants in the above suit are the revision petitioners. Suit filed by the respondent/plaintiff for recovery of money based on the work contract entered with the defendants was found not entertainable as the plaintiff was shown to be an unregistered firm. The learned Sub Judge rejecting the plaint ordered for refund of the court fee paid on the plaint and granted liberty to the plaintiff to file fresh suit on the basis of the registration of the firm, subsequently obtained. That order to the extent the refund of the court fee is allowed and liberty granted to the plaintiff to file fresh suit is challenged by the defendants in this revision. 2. I heard the counsel on both sides. C.R.P.No.440 of 2009 - B 2 3. Learned counsel for the revision petitioners/defendants contended that there should have been an outright dismissal of the suit and not the rejection of the plaint alone ordering refund of the court fee and allowing the plaintiff to file a fresh suit on the registration of the firm subsequently made. A number of judicial pronouncements was canvassed to contend that the plaintiffs cannot be allowed to file a fresh suit and also to get refund of the court fee on the previous suit. I am not impressed by the submissions made by the counsel. The Apex Court in M/s Raptakos Brett & Co. v. Ganesh Property (AIR 1998 SC 3085) after taking note that the bar under Section 69(2) of the Partnership Act is mandatory and nonregistration of the firm in a suit against a third party would make the suit incompetent on the very threshold had held that subsequent registration of the firm may permit the court to treat the suit as having been duly instituted on the date of which the registration is obtained as if the previous defect in its presentation had no longer survived. Observation made by the apex court in the above decision reads thus: C.R.P.No.440 of 2009 - B 3 “It is obvious that even if the suit is filed by an unregistered partnership firm, against a third party and is treated to be incompetent as per Section 69, sub-section (2) of the Partnership Act, if pending the suit before a decree is obtained the plaintiff puts its house in order and gets itself registered the defect in the earlier filing which even though may result in treating the original suit as still born, would no longer survive if the suit is treated to be deemed to be instituted on the date on which registration is obtained.” 4. There is also no merit in the submission of the learned counsel for the revision petitioner that the plaintiff cannot be permitted to file a fresh suit on the same cause of action nor entitled to refund of the court fee paid on the previous suit. Order VII Rule 13 makes it emphatically clear that rejection of the plaint on any of the grounds envisaged under Order VII Rule 11 by itself would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. When a suit has been rejected for the reason that the plaintiff is an unregistered firm and it cannot maintain a suit against a third party as barred under Section 69(1) of the Partnership Act, it is C.R.P.No.440 of 2009 - B 4 not a dismissal of a suit on its merits as the suit itself from inception still born was not entertainable under law. In such a case the plaintiff who instituted the suit on rejection of the plaint is entitled to get refund of the court fee paid on the plaint, and even without grant of leave by the court in such a case, as provided under Order VII Rule 13 CPC, the plaintiff can maintain a fresh suit on the same cause of action after getting itself registered and thus curing the defect which led to rejection of its earlier plaint. Such being the position of law, there is no merit in the revision and it is only to be dismissed, and I do so. Revision is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-