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Judgment
Mir Sjadat Ali Khan, J.—This in revision petition No. 89, register No. 4 of 1952, The District & Sessions Court, Secunderabad, by judgment dated 31-1-1952 dismissed the suit by the Finn of Sunkari Yadgiri & Co. against the Union or India owning the Southern Railways and the Union of India owning the Central Railways. Hence this revision petition by the Plaintiff firm. I have heard the arguments of the learned advocates of the parties.
It is evident that the District & Sessions Court has based its judgment on Clause (2) of Section (59) Indian Partnership Act and has held that under this sub-section it was incumbent on the Plaintiff to adduce the extract of the register of the firm showing the Plaintiff to be a partner and that mere production of a certificate showing the registration of the firm is not sufficient even in a ''case when a firm is suing a third party. The Sub-section (2) of Section 69 reads as follows:
No suit to enforce 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.
It has been held in ''Sardar Singar Singh v. Sikri Brothers AIR 1914 Oudh 37 (A) that:
Where a registered firm sues as the Plaintiff in the case and the title does not show that any partners by name were suing, the second portion of Sub-section (2) of Section 69 is not directly applicable to the case. The mere fact that the person through whom the Plaintiff sued described himself as partner, manager and general attorney does not make the suit as one by partners.
and in-- Ram Kumar Ram Chandra Vs. The Dominion of India, it has been held that:
Even though a firm has got no legal entity and as a firm it is not entitled to institute a suit, a suit can be filed by the firm in accordance with the provisions contained in Order 30...The firm being in fact the Plaintiff and it being registered under the Partnership Act the provisions of Section 69(2) are complied with and hence the plaint cannot be rejected for want of a copy of the Register of Firms showing the Plaintiff as its partner.
The learned Advocate for the Railways argued that the finding of the said Court on other points is also incorrect and the suit is liable to be dismissed on these points also. He argued that in the first place it was barred by limitation and the consignor had executed risk notes A and B under which no liability can attach to the Railway in case of delay. I have carefully considered these points. Regarding the point of limitation it is evident that the Plaintiff was corresponding with the Railway and the refusal of the Railway was intimated to him on 29-5-1950. The suit was brought on 27-11-1950, i.e., within one year of the refusal. The suit is, therefore, within time. Regarding the execution of the risk notes it should be noted that they were executed by the consignor and the consignee cannot be deemed to be bound by it and, apart from this, as has been held by the trial court, the Railways only adduced one witness and he does not prove the execution of the risk notes. In the circumstances when the execution of the risk notes is not proved, liability for delay resulting in loss to the Plaintiff cannot be said to have been covered by these notes. Both the arguments for the learned advocate for the Railways are, therefore, not tenable. I allow this revision petition with costs.