RANA BHAGWAN DAS, J.--- This appeal is directed against an innocuous order, dated 10-11-1998 passed by the learned Single Judge in Suit No.781 of 1993, observing that two applications pending since 1974-75, coming up for hearing, but none finally argued shall be heard alongwith the main suit. By the same order learned Single Judge struck the issues and directed the recording of evidence on commission through an Advocate appointed as Commissioner for this purpose in order to dispose of the suit on merits expeditiously.
2. Grievance of the learned counsel for the appellant is that his application under Order 7, Rule 11,was not heard which touched the root of the case inasmuch as he had raised the question of bar and non-maintainability of the suit in terms of section 69 of the Partnership Act, 1932. Section 69 may be reproached herein for the sake of convenience:-- "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 partner in 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 person suing are or have been shown in the Register of Firms as partners in the firm.
(3) .................................................................
3. Precisely the contention of the learned counsel is. that in the absence of registration of partnership firm, a suit could not be filed against the appellant and on the averments made in plaint it was liable to summary rejection without further proceedings. In support of this submission learned counsel referred to paragraph No.1 of the plaint tending to show that the respondents are doing cloth business as partners under an oral agreement under the name and style of Messrs Zahid and Talib. It would appear that the plaintiffs/respondents had sued the defendant/appellant for recovery of money in their individual capacity and did not sue him for and on behalf of the firm.
Had they sued in the name of the unregistered firm suit might have been not maintainable, but in the present state of facts plaint cannot be said to be barred under the provisions of the Partnership Act. Since this point was not argued before the learned Single Judge aforesaid observations are tentative in nature and the appellant would be at liberty to agitate the issue at the trial of the suit.
4. The impugned order on the face of it does not suffer from any legal infirmity or impropriety so as to warrant an interference with the exercise of discretion. The appeal is thus, dismissed in limine alongwith the listed application.