1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Writ Petition No. 1103 of 2008 [M/s. Sweet Home Constructions & another Vs. B.B. Gaigole & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. B.N. Mohta, Advocate for the petitioners. ----- CORAM : A.H. JOSHI, J. DATE : 27th March,2008. 1. Heard. 2. The respondents, who are defendants, have filed an application for amendment of Written Statement. 3. The foundation of amendment of Written Statement is Sub-sections [1] and [2] of Section 69 of the Indian Partnership Act, 1932, which reads as follows:- “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 persons suing as a partner in a firm against the firm or any person 2 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 : Provided that the requirement of registration of firm under this sub-section shall not apply to the suits or proceedings instituted by the heirs or legal representatives of the deceased partner of a firm for accounts of the firm or to realise the property of 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 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. ......” 4. The amendment has been opposed on the ground that it is barred by proviso to Rule 17 of Order-VI of Civil Procedure Code. 5. Petitioners' contention that the amendment is barred by said rule is correct. However, the question is whether the procedural law can come in the way of substantive law. 6. It ought not be forgotten that the bar under Section 69 of the Indian Partnership Act, 1932 is akin to the bar on the Court, not just bar or disentitlement of a party. Such bar 3 being a question of law, which could be agitated even without incorporating in the Written Statement, cannot be denied when sought for by way of amendment. 7. Petitioners' reliance on reported Judgment in case of Ajendraprasadji N. Pande and another Vs. Keshavprasadkeshadasji N. & ors. [AIR 2007 SC 806] would not impend the amendment, which goes to the root of the case. 8. A suit, which is not maintainable by substantive law, would proceed if the amendment is not allowed. 9. The amendment, which goes to the root of the case and disentitles the plaintiffs to continue a lis, cannot be rejected taking shelter of procedural law. On this sole ground alone, the Writ Petition deserves to be dismissed. 10. In the circumstances, Writ Petition has no merit. It is, therefore, dismissed. Judge |Hedau| 4