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Judgment
Govardhan, J.—This is an application to dismiss C.S. No. 428/93. The applicant/defendant in his affidavit has stated briefly as follows:
The suit has been filed by M/S. Kashmir Handicrafts as a partnership by its partner Gulam Nabi. In the Application field by the plaintiff seeking
temporary injunction, the respondent has filed a counter stating that the plaintiff is not entitled to the declaratory relief and the suit is not
maintainable. In the counter it was also brought out that at the request of one Mohamed Amin. Mir, a leave and licence agreement came into
existence in the year 1976 originally and subsequently by an agreement dated 8.4.86, the leave and licence was continued. The plaintiff has
suppressed the above agreement. During the enquiry, the applicant gave a notice to the respondent plaintiff to produce the certificate of registration
of the partnership firm and the connected partnership deed. When it was produced, it came to light that the partnership firm was registered before
the Sub-Registrar, Sri Nagar and not registered under the Partnership Act, since the law of Partnership Act did not extend to the State of Kashmir.
Sec. 69 of the Partnership Act is categorical and law as settled by this/Court as well as the Supreme Court is clear that for any firm to maintain a
suit claim out of a contract or/conferred by the Partnership Act, shall be instituted in any court by a registered firm which has been duly registered
under the Partnership Act and any suit to enforce a right arising out of a contract shall be instituted by or on behalf of the firm against the third party
unless the firm is registered and the persons suing are been shown in the register of firms as partners in the firm. It is clear that the plaintiff which is
claiming itself as duly registered firm under the Partnership Act is not a registered firm and as such it cannot maintain the suit. The plaintiff has made
a gross mis-representation with reference to the registration of the firm in the plaint. In view of that fact that the plaintiff is not a duly registered
partnership firm under the Partnership Act, but claims itself as one wrongly, falsely with the deliberate intention to mislead this court is not entitled
to any equitable relief in the. application from this Court and the suit is liable to be dismissed as such. The respondents in their counter contend
briefly as follows: The application praying for an order of dismissal of C.S. 428793 is not maintainable. The father of the deponent of the counter
affidavit Md. Amin Mir of M/s. Mir Sons Furriers got the shop in the applicant''s hotel under an agreement dated 8.4.76 for a period of 5 years
from 1.2.1975 to run business in crafts, woollen Shawls etc. M/S. Mir Sons Furriers was converted into a partnership business consisting of the
deponent, his brother Irfan Yusuf Mir and their father as partners. The Partnership was made and instituted at Sri Nagar. The partnership business
is being carried on at Sri Nagar in the name and style of Handicrafts in at Agra under the name and style of Oriental Arts and at Madras under the
name and style of Kashmir Handicrafts. The partnership came into existence by means of a deed dated 26.7.75. It was reconstituted from 1.4.92
by taking the son of the deponent also as a partner under a deed of partnership dated 6.5.1992. The partnership was duly registered with the Sub-
Registrar of Sri Nagar. The said Kashmir Handicrafts are the respondents herein and the plain tiff in the suit and the deponent is one of its partners.
The applicants have recognized Kashmir Handicrafts in occupation of the shop in the agreement dated 29.6.1990 and 24.8.90 produced by the
applicant. It is clearly mentioned that the other party to the said document is Md. Amin Mir, Partner, C/o. Handicrafts Inn, Indian Inhabitant to
carry on business in the firm name and style of Kashmir Handicrafts in the applicant''s hotel. Md. Amin Mir had signed the said document for
Kashmir Handicrafts as a partner. Kashmir Handicrafts has been recognised, accepted and approved as a tenant/licensee of the shop in the
applicant''s hotel. The said Kashmir Handicrafts have got every right and authority to sue the applicants herein. As per Sec. 1 of the Partnership
Act, the said Act extends to the whole of India, except to Jammu & Kashmir. Hence the question of the applicability of Sec. 69 of the Act does
not arise. While giving instructions to the counsel, it was stated by the deponent that their is a partnership firm duly registered at Sri Nagar. Basing
on that, in the plaint, it is stated that the partnership firm was duly registered under the partnership Act by an inadvertent mistake on the impression
that it was registered under the Indian Partnership Act. That is why the mistake has crept in the plaint. The respondent has not committed any
offence of perjury and have no such intention also. The respondent has no intention to mislead the court. The plaintiff Kashmir Handicrafts does not
require any registration under the Partnership Act. The application is therefore liable to be dismissed.
The point for consideration is, whether the suit C.S. 428/93 is liable to be dismissed on the ground that the suit has been filed by the plaintiff
who is not a firm registered under the Partnership Act?
The Point: The suit has been filed by M/S. Kashmir Handicrafts, a partnership firm represented by its partner Gulam Nabi Mir for declaration
and permanent injunction against the respondent. Both in the short cause title and in the long cause title, the plaintiff, has been described as M/S.
Kashmir Handicrafts, a partnership firm registered under the partnership Act represented by its partner Mr. Gulam Nabi Mir. Alongwith the plaint,
an application for interim injunction in A. No. 270/93 was also filed. During the enquiry of the said application, the respondent/defendant had
issued a notice to the applicant/plaintiff to produce the partnership deed and the extract of the partnership registration certificate and the
respondent has produced the partnership deed which was registered before the Sub-Registrar, Sri Nagar. The respondent has then come to know
that the plaintiff is not a firm registered under the Partnership Act and therefore, come forward with this application that the suit is not maintainable
and it is non-est and is liable to be dismissed in limini. The respondent, in the counter has stated that while briefing the advocate, it was stated to the
advocate that the plaintiff firm was a registered firm and the plaint has been drafted as if the plaintiff is a registered firm under the Partnership Act
and the deponent to the counter who has given instructions to his counsel has stated that it was an inadvertent mistake on the impression crept on
his instructions and he has also not noted this mistake while he was going through the plaint before signing the same. In other words, in the counter
filed by the plaintiff in this application, the respondent in this application admits that the plaintiff is not a firm registered under the Partnership Act.
The learned counsel for the applicant in this application would contend that registration of a partnership firm under the Partnership Act is a must
and the person who signs the plaint as a partner also should be a partner on the date of signing the plaint, as per Sec. 69(2) of the Partnership Act
and when these two conditions are not satisfied, the suit is to be treated as non-est and it is liable to be dismissed in limini. As per Sec. 69(2) of the
Partnership Act, no suit enforcing a right arising from a contract shall be instituted in any court by or on behalf of a firm against any 3rd party unless
the firm is registered and the persons suing should have been shown in the register of firms as partners in the firm. The learned counsel for the
respondent would argue that under Sec. 69(2) of the Act, a suit to enforce a right arising from a contract against a third party alone is barred unless
the firm is registered and in so far as the plaintiff respondent is concerned, he has filed the suit to enforce the right which is a statutory right and not
a right arising from a contract and therefore, the Sec. 9(2) cannot be a bar to this suit. Thus, according to the learned counsel for the plaintiff, he is
not trying to enforce any right arising under a contract and in fact there is no contract at all between the plaintiff on the one hand and the defendant
on the other hand and the plaintiff only wants to enforce his statutory right and compels the defendant to perform his statutory obligation. In support
of his above argument, the learned counsel for the plaintiff draws the attention of this court to the agreement dated 8.4.76 between Md. Amin Mir.
Proprietor of M/s. Mir. Sons Furriers on the one hand and the Oriental Hotels on the other hand and he would argue that the said agreement has
not been entered into between the plaintiff viz., Kashmir Handicrafts and the defendant and therefore, it cannot be said that the plaintiff is trying to
enforce his right to be in possession of the property until evicted by due process of law arises under any contract. The learned counsel for the
plaintiff also drew the attention of this court to the subsequent agreement also dated 29.6.90 and 24.8.90 between Md. Amin Mir on the one hand
and the Oriental Hotels on the other hand. In these agreements Md. Amin Mir has signed them for Kashmir Handicrafts as partner. Just because it
is stated in the agreement that Md. Amin Mir, partner, Handicrafts Inn, it cannot be stated that it is an agreement rendered into by Md. Amin Mir
in his individual capacity. The partnership agreement between Md. Amin Mir and Gulam Nabi Mir and two others dated 6.5.92 has been brought
to the notice of this court by the learned counsel for the applicant herein, in which it is categorically stated that the purpose of the said agreement
has been for carrying on business known as Handicrafts Inn at Sri Nagar with branches at Agra and Madras under the partnership deed executed
on 26.7.85 and the branch at Madras shall continue in the name and style of Kashmir Handicrafts as before. This deed of Partnership between
Md. Amin Mir and his sons and grandson would show that they were carrying on business under the name and style of Kashmir Handicrafts
treating it as a partnership firm at Madras. Even in the agreement dated 29.6.1990 and 24.8.90 relied on by the learned counsel for the plaintiff, it
is stated that the said agreement has been entered into by Md. Amin Mir, Partner, C/o. Handicrafts Inn to carry on business as in the former name
and style of Kashmir Handicrafts, Shop-14, Taj Coromandel Hotel, Madras. These partnership deeds between Md. Amin Mir and his sons and
his grandson and the leave and licence agreements between the defendant on the one hand and Mr. Mohammed Amin Mir on the other hand,
would go to show that there was an agreement between the defendant and the plaintiff in respect of the two shops of Taj Coromandel Hotel and it
is not necessary for us now to consider whether it is a lease or licence. The right to be in possession of the two shops for the plaintiff is one under
these agreements and it cannot be stated that the right of the plaintiff does not arise under any contract as claimed by the learned counsel for the
plaintiff. In this connection, it will not be out of context to point out that even in the plaint, it is stated by the plaintiff that the plaintiff is a statutory-
tenant and until evicted by due process of law, the plaintiff is entitled to be in possession of the two shops in question. Therefore, when once it is
admitted that the plaintiff is a statutory tenant, he cannot file a suit for declaration and his remedy is to resist the. eviction petition if any filed by the
respondent for dispossessing him under the Rent Control Act. The contention of the learned counsel for the plaintiff that there is no contract
between the defendant and the plaintiff and therefore, the plaintiff is entitled to file a suit to enforce his right to be in possession which does not arise
from a Contract cannot be propounded by invoking Sec. 69 (2) of the Partnership Act, is in my opinion not a tenable one. The plaintiff wants to
enforce his right to be in possession of the property as a tenant under the contract viz., the agreements which are described as leave and licence
agreements dated 29.6.1990 and 14.8.90 and therefore, the claim of the applicant in this application that the suit is not maintainable as per Sec.
69(2) of the Partnership Act is well founded.
The learned counsel for the plaintiff would rely upon the decision reported in 1.) Kerala Arecanut Stores v. M/s. Ramkishore and Sons another.
( AIR 1975 Ker 44) 2)M/s. Virendra Dresses Delhi v. M/s. Varinder Garments, Delhi (A.I.R. 1982 Del 482) in support of his contention that
Sec. 69(2) cannot be a bar for any registered firm to file a suit by one of its partner for enforcing his rights which does not arise under a contract. It
is no doubt true that in the above two decisions, it has been held that in cases where right which is sought to be enforced does not arise from a
contract, Sec. 69(2) will not be a bar for the filing of the suit. But, these two decisions are not applicable to the facts of the present case since in
the present case, it is established that the right of the plaintiff arises only under the contract viz., the lease agreement and therefore the above two
decisions are not applicable to the facts of the present case. If the plaintiff is treated as a statutory tenant and he wants to establish his right, he
cannot file the suit for declaration. Thus, the theory of statutory tenant put forward by the learned counsel for the plaintiff in order to interpret the
agreements in his favour are not acceptable on the simple reason that the possession of the plaintiff firm which is not a registered one under the
Partnership Act was only in pursuance of the agreement entered into between the plaintiff on the one hand and the defendant on the other hand. In
that view, I am of the opinion that the plaintiff which is not a firm registered under the Partnership Act is not entitled to file a suit as per Sec. 69(2)
of the Partnership Act, and the suit filed in violation of Sec. 69(2) of the Partnership Act is non-est and oh that ground, the suit is liable to be
dismissed. Therefore, I hold on, the point that the applicant in Application No. 3568/93 has made out a case that the suit 428/1993 is non-est by
virtue of Sec. 69(2) of the Partnership Act and as such, it is liable to be dismissed. In the result, the application is allowed as prayed for.