AIR 1986 ORISSA 1986 ::AIR 1986 ORISSA 1 ::(1985) 1 Orissa LR 561 ::(1985) 2 CivLJ 205

Orissa High Court

Hon'ble Judge(s): K. P. Mohapatra , J

(A) Civil P.C. (5 of 1908) , O.23 R.1— Partnership Act (9 of 1932) , S.69— 'Formal defect' - Firm not registered under S.59 on date of institution of suit - Suit not maintainable initially by operation of S.69(2) - Such a defect not a formal defect - O.23, R. 1 not attracted. The expression formal defect occurring in O.23, R.1(3)(a), C.P.C. even if given a wide and liberal meaning must be deemed to connote every kind of defect which does not affect the merits of the case or does not strike at the root of the plaintiff's case. Case law discussed.(Para 5) A firm not registered under S.59 of Partnership Act suffers from the legal disability of enforcing a right arising from a contract by instituting a suit against a third party by operation of S.69(2) of the Partnership Act. Non-registration of the firm, therefore, is not a formal defect, but a defect affecting the merits of the suit, in other words, the very root of plaintiff's suit.(Para 10) Where the firm was not registered under S.59 on the date the suit was instituted and so by operation of S.69(2), the suit was initially not maintainable, the defect was not a formal defect and hence, suit filed by such a firm could not be allowed to be withdrawn under O.23, R.1.(Para 10) ....