Kewal Kishan Thr Attorney Davinder Pal v. Khurana Kaj House

V.B. GUPTA, J. ab

* HIGH COURT OF DELHI : NEW DELHI CRP No. 150/2010 and C.M. No. 14598/2010 (Stay) % Judgment reserved on: 29th September, 2010 Judgment delivered on: 06th October, 2010 Shri Kewal Kishan, Son of Late Shri Santokh Singh, Through His Attorney Sh. Devinder Pal, 1179, Gali No. 12, Main Road, Govind Puri, Kalkaji, New Delhi-110 019. ….Petitioner. Through: Mr. Sanjay Goswami, Adv. Versus M/s Khurana Kaj House (Now Known as Khurana Traders) Shop No. 3, 1170, Gali no. 12, Main Road, Govind Puri, Kalkaji, New Delhi- 110 019 ….. Respondent Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present revision petition under Section 115 of the Code of Civil Procedure 1908 (for short as "Code") has been filed by petitioner against order dated 12th May, 2010, passed by Senior Civil Judge, New Delhi, vide which application of petitioner under Order 7 rule 11 of the Code was dismissed. 2. Brief facts of this case are that, respondent (plaintiff in the trial court) is a partnership firm with Mr. Ravinder Pal Singh and Mr. Paramjeet Singh as its partner. Respondent"s firm had taken the suit property on rent from the father of petitioner in 1976-1977. Petitioner has been threatening to raise construction over the roof of the suit property which form part of respondent"s tenancy. Accordingly, respondent filed a suit for permanent and mandatory injunction against petitioner and Municipal Corporation of Delhi. 3. Petitioner in its written statement took the plea that respondent is an illegal and unauthorized sub-tenant in the suit shop and he never accepted respondent"s firm as its tenant. 4. After filing of the written statement, later on petitioner filed an application under Order 7 rule 11 of the Code, stating that as apparent from the plaint, respondent"s firm has not been registered with the Registrar of Firms and as such suit filed by it is barred under Section 69 of The Indian Partnership Act (for short as "Act") and petition is liable to be dismissed. 5. In reply, it is stated by respondent that, suit filed by them is for injunction, which is not arising out of any contract between the parties and as such Section 69 (2) of the Act has no application. 6. It is contended by learned counsel for petitioner that Section 69 of the Act, clearly mandates that an unregistered partnership firm cannot file a suit against any third party on a cause of action arising out of a contract entered into by the partnership firm. Since, entire basis of the suit is that the contractual tenancy of respondent as regard the suit shop also included the roof rights, as such present suit is not maintainable in the absence of necessary registration of the respondent"s firm under the Act. 7. Other contention is that, inspite of filing of the written statement and not taking any specific defence with regard to the registration of the respondent"s firm under the Act, application under Order 7 rule 11 of the Code is maintainable. In support, learned counsel has relied upon the following judgments:- (i) Saleem Bhai and Others Vs. State of Maharashtra and others, AIR 2003 Supreme Court 759; (ii) Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others, (2004) 3 Supreme Court Cases 137 and (iii) M/s Raptakos Brett & Co. Ltd. Vs. Ganesh Property, AIR 1998, Supreme Court 3085. 8. Section 69 (1) and (2) of the Act, relevant for deciding the present controversy read 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 partne