State Bank Of INDIA vs. M/S Sri Venkata Ramana Estates
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Cause title — parties, addresses and appearances
ORDER:
The present C.R.P. is filed aggrieved by the order and decree dated 05.03.2025 passed in I.A.No.1829 of 2024 in O.S.No.295 of 2015 on the file of the Court of Family-cum-VIII Additional District Judge, Prakasam at Ongole wherein the application filed under Order 8 Rule 9 and Section 151 of CPC to receive additional written statement was dismissed.
Petitioners herein are the defendants and respondent herein is plaintiff in the suit. For the convenience of this Court the parties herein are referred as they are arrayed in the suit.
BRIEF FACTS OF THE CASE:
The suit was filed by the plaintiff/landlord for eviction of suit schedule property and for recovery of rental / lease due amount along with applicable service tax including TDS / GST and also repairs carried out to suit schedule property. Pending suit the petitioners/defendants filed the present application i.e., I.A.No.1829 of 2024 in O.S.No.295 of 2015 under Order 8 Rule 9 of CPC to permit them to file additional written statement as part of record in the main suit. Admittedly, the chief evidence as well as cross-examination of the plaintiff was completed but before letting the evidence by the defendants they come with this application seeking permission to file additional written statement. The plaintiff/respondent herein filed counter in I.A before the Court below. Learned counsel for the petitioners/defendants submits that the subject additional written statement is only a legal submission that whether the registered partnership firm can institute a suit without proving or filing certificate of registration under Section 69(2) of Partnership Act, 1932 (for short “Act, 1932”)
Therefore, the plea of filing additional written statement is only a legal plea / additional pleading by which there is no possibility of change of nature of the suit or facts and there would not be any contradictions. That being so, the Court below erroneously dismissed the application of the petitioners/defendants on the ground that the plea of the subject additional written statement is contrary to the admissions made by the defendants in the previous pleadings. The subsequent pleadings are meant for denying or clarifying the facts stated in the written statement. Therefore, a fresh cause of action or a fresh case is not to be brought up by the additional pleadings. Therefore, prejudice would be caused to the plaintiff/respondent if the present application is allowed, the proposed additional written statement would be read as part and parcel of original written statement, where new contentions are put forth. As such, the said
conclusion of the Court below is contrary to the substantial law as laid down under Section 69 (2) of the Act, 1932. Therefore, the dismissal of the application is contrary to law and liable to be set aside. Learned counsel for the petitioners/defendants to substantiate their claim, they relied upon that the plea as additional written statement is only a legal plea by which either nature of the suit or pleadings already as set out in the original written statement meant cause any change, for which they relied upon the judgment of Hon’ble Supreme Court in Sunkari Tirumala Rao & others Vs. Penki Aruna Kumari1. 5. On the other hand, learned counsel for respondent/plaintiff submits that the 1st defendant is a tenant since 2005 and there is a 1 [2025] 1 S.C.R. 902
registered lease is in existence between the plaintiff and 1st defendant and the said lease was had been continued without there being any express renewal. The plea of the plaintiff for eviction as well as recovery of rentals as well as taxes, damages is in accordance with terms of the lease. Therefore, the 1st defendant admitted the registered lease agreement between the plaintiff and 1st defendant. The party to the lease deed or agreement filed the present suit. Having admitted the existence of lease deed in terms of the lease and plaintiff is a party to the lease deed duly represented by its Managing Partner. But pleading through additional written statement contrary to the previous pleadings at written statement certainly amounts to contradictory statements on the part of the defendants apart from causing change of nature of the suit and pleadings. He further submits that the Court below rightly dismissed the application of the petitioners on the ground that if the additional written statement was allowed, it may cause for contradictory statement on the part of the defendants and nature of the pleadings as well as nature of the suit would be caused for change. Therefore, the plea of petitioners is contrary to the settled principles of law that at any cost the nature of suit cannot be changed by way of any amendments or additional pleas. Therefore, the present CRP lacks merits and liable to be dismissed. The Counsel for respondent/plaintiff submits that as long as the plaintiff enforcing either statutory right or common law remedy, the same can be enforced even through an un-registered partnership firm, for which he relied upon the following judgments:
Haldiram Bhujiawala and another vs. Anand Kumar won’t be caused for the change the nature of the previous pleadings in the written statement.
For determination of the said issue, it is appropriate to extract Section 69(1) and (2) of the Act, 1932 as hereunder:
2 (2000) 3 Supreme Court Cases 250 3 (2022) 13 Supreme Court Cases 772
“Section 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 persons suing are or have been shown in the Register of Firms as partners in the firm.”
As contended by learned counsel for the petitioners that the plea set out at the additional written statement is only a legal plea regarding maintainability of the suit filed by a unregistered partnership firm due to the substantial question of law as envisaged under Section 69 (2) of the Act, 1932. Therefore, if it is only a legal plea, is any change of nature of the suit or previous pleadings set out in the original written statement and facts stated in the original written statement. Therefore, the rejection of the application by the Court below is not only against law but omission of substantial law under Section 69(2) of the Act, 1932 for which he also quoted judgment of Hon’ble Apex Court in Sunkari Tirumala Rao & others Vs. Penki Aruna Kumari (Supra 1), wherein Hon’ble Apex Court held thus:
“6. The High Court took the view that the suit is not maintainable, being hit by Section 69 of the Partnership Act. The High Court in its impugned order while allowing the revision application, observed as under:- “3. The counsel for petitioner submits that the suit is not maintainable for the reason that it is hit by Section 69(1) of the Indian Partnership Act, 1932 (for short, the Act). The issue involved is whether a partner of an unregistered firm can maintain a suit against the other partner. For the sake of convenience, Section 69(1) of the Act is extracted hereunder: Section 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 a behalf of any persons 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: Provided that the requirement of registration of firm under this sub-section shall not apply to the suits or proceedings instituted by the heirs or legal representatives of the deceased partner of a firm for accounts of the firm or to realise the property of the firm.
The counsel for the respondents-plaintiffs submits that the partnership business has not yet commenced, and in the written statement filed by the petitioner-defendant in the suit, it is categorically mentioned that the business was stopped in the year 2009. The counsel for the petitioner, in answer to the said submission, draws the attention of this Court to the partnership agreement, wherein it is clearly mentioned that the plaintiff was offering partnership to the respondents as she was not able to carry on the business. The reason for closure of the business is immaterial since it is clearly mentioned in the agreement itself that the petitioner- defendant was not in a position to continue the Crusher and hence, she is offering partnership to the respondents. Hence, it has to be understood from the agreement that knowing fully well that the Crusher was not in a working condition on the date of the agreement, the respondents entered into the agreement. The judgment of the Lahore
High Court in Bishen Narain v. Swaroop Narain1 AIR 1938 Lahore 43 is to the effect that the fact that the actual business did not commence is immaterial, when the suit is filed by a member of the partnership firm against another partner, and it held that the partnership deed has to be registered in order to maintain a suit against the other partner. This Court is persuaded by the said judgment, since, even looked at from the point of view of equities, the respondents do not deserve to be given any concession on the ground that the business of the partnership firm has not commenced, as was done by the lower Court. Once there is an agreement of partnership, unless it is registered, no suit can be maintained by the partners for enforcing any right accruing from such agreement.
In view of the above, this Court opines that the impugned order cannot be sustained.
Accordingly, the civil revision petition is allowed, setting aside the order dated 07.7.2014, passed in 0.S. No.80 of 2012 on the file of the Court of District Judge, Vizianagaram. Consequently, it is held that O.S. No.80 of 2012 on the file of the Court, of District Judge, Vizianagaram, is not maintainable.”
It is evident from a reading of sub-sections (1) and (2) of Section 69 that it assumes a mandatory character. Section 69(1) prohibits a suit amongst the partners of an unregistered partnership firm, for the enforcement of a right either arising from a contract or conferred by the Act, unless the suit amongst the partners is in the nature of dissolution of the partnership firm and/or rendition of accounts. Section 69(2) prohibits the institution of a suit by an unregistered firm against third persons for the enforcement of a right arising from a contract. As a consequence, a suit filed by an unregistered partnership firm and all proceedings arising thereunder, which fall within the ambit of Section 69 would be without juri iction.”
Therefore, the rejection of I.A No.1829 of 2024 in O.S.No.295 of 2015 is in violation of law, is invalid and unsustainable for the reason that as observed by the Court below the petitioners/defendants had admitted the registered lease deed and terms of the lease and also payment of rental dues and other taxes, which are liable to pay along with rent. But prime plea in the suit itself is, the present suit in hand not maintainable since it is classified an un-registered firm is to some extent contradicting the earlier admission/pleadings made at written statement. However, if it is the legal plea the same can be put forth even at the time of arguments and the legal pleading would be quoted for substantiating substantial law, which may not requires any prior pleading. Therefore, the petitioner can canvas before the Court below for attention and for applicability test of Section 69(2) of the Act, 1932 in view of the facts and circumstances even at the time of arguments since it is a substantial law. As far as judgment relied upon by learned counsel for the petitioners that, it is not squarely applicable to the present facts and circumstances of the case for the reason that the entire judgment discussed about 69(1) but not about 69(2), wherein the dispute between the partners and a suit therein filed by the partner but not by the partnership firm.
On perusal of the order of the Court below which referred at Para-12 clearly and categorically states that having admitted the lease agreement between the parties and made as enforceable agreement and contradicting the admissions therein by way of proposed additional written statement by contending it is not a registered firm as per Section 69(2) of the Act, 1932 and suit itself is not maintainable, is certainly contradicts the previous pleadings of the defendants. Further, it is settled preposition of law that the subsequent pleadings are meant for denying or clarifying the facts settled in the written statement and a fresh cause of action cannot be brought up by filing additional pleadings/written statement, since the issues were already framed and chief evidence of the plaintiff and his cross-examination was already completed. Therefore, it can be safely hold that filing of the additional written statement is afterthought to fill- up the gaps. In view of the said fact, the Court below rightly rejected the claim of the petitioners/defendants. Admittedly, in case in hand before filing additional written statement all the issues were framed, trial was commenced and plaintiff’s evidence was already completed and it is coming for defendants’ evidence. Therefore, at this juncture
filing of this additional statement by setting up a legal plea afresh which can be pleaded even at the time of arguments as legal submission rather than making as additional new plea by way of additional written statement as explained above.
As contended by learned counsel for the respondent, the petitioners are not invoking any contractual rights but invoking statutory rights as well as common law remedy as per the terms of the registered lease deed. The present suit is filed merely for enforcing the statutory rights as well as common law remedies. While enforcing statutory rights and common law remedies the bar envisaged under Section 69(2) against unregistered partnership firm is not at all applicable as held by Hon’ble Supreme Court in Haldiram another (Supra 2) wherein the Hon’ble Apex Court held as under:
“2. This appeal has been preferred by the two defendants, M/s. Hal-diram Bhujiawala and Sri Ashok Kumar against the judgment of the Delhi High Court in FAO 365 of 1999 dated 30.11.1999. By that order the High Court summarily dismissed the appellants' appeal against the order of the learned Single Judge dated 2.11.1999 in IA 5996/99 in Suit No. 635/92. The IA was filed under Order 7 Rule 11 CPC by the appellants for rejection of the plaint filed by two plaintiffs, Anand Kumar Deepak Kumar trading as Haldiram Bhujiawala and Shiv Kishan Agarwal, - on the ground that the 1st plaintiff was a partnership not registered with the Registrar of Firms on the date of suit i.e. on 10.12.91 and that the subsequent registration of the firm on 29.5.92 would not cure the initial defect.
The points that arise for consideration are : (i) whether Section 69(2) bars a suit by a firm not registered on the date of suit where permanent injunction and damages are claimed in respect of a trade marks as a statutory right or by invoking Common Law principles applicable to a passing-off action? (ii) whether the words 'arising from a contract' in Section 69(2) refer only to a situation where an unregistered firm is enforcing a right arising from a contract entered into by the firm with the defendant during the course of its business or whether the bar under Section 69(2) can be extended to any contract referred to in the plaint unconnected with the defendant, as the source of title to the suit property? Point 1:
The question whether Section 69(2) is a bar to a suit filed by an unregistered firm even if a statutory right is being enforced or even if only a Common Law right is being enforce came up directly for consideration in this Court in M/s. Raptokas Brett Co. Ltd. v. Ganesh Property, [1998] 7 SCC 184. In that case, Majmudar, J. speaking for the Bench clearly expressed the view that Section 69(2) cannot bar the enforcement by way of suit by an unregistered firm in respect of a statutory right or a common law right. On the facts of that case, it was held that the right to evict a tenant upon expiry of the lease was not a right 'arising from a contract' but was a common law right or a statutory right under and others (Supra 3) Hon’ble Supreme Court observed as under:
“17. 4. The points arising for determination in the said matter were formulated by this Court in the following terms: - “8. The points that arise for consideration are: (i) Whether Section 69(2) bars a suit by a firm not registered on the date of suit where permanent injunction and damages are claimed in respect of a trademark as a statutory right or by invoking common law principles applicable to a passing-off action? (ii) Whether the words “arising from a contract” in Section 69(2) refer only to a situation where an unregistered firm is enforcing a right arising from a contract entered into by the firm with the defendant during the course of its business or whether the bar under Section 69(2) can be extended to any contract referred to in the plaint unconnected with the defendant, as the source of title to the suit property?
5 Answering the first question in the negative, this Court referred to the previous decision in Raptakos Brett & Co. Ltd. (supra) and held as follows: - “9. The question whether Section 69(2) is a bar to a suit filed by an unregistered firm even if a statutory right is being enforced or even if only a common law right is being enforced came up directly for consideration in this Court in Raptakas Brett Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184]. In that case, Majmudar, J. speaking for the Bench clearly expressed the view that Section 69(2) cannot bar the enforcement by way of a suit by an unregistered firm in respect of a statutory right or a common law right. On the facts of that case, it was held that the right to evict a tenant upon expiry of the lease was not a right “arising from a contract” but was a common law right or a statutory right under the Transfer of Property Act. The fact that the plaint in that case referred to a lease and to its expiry, made no difference. Hence, the said suit
was held not barred. It appears to us that in that case the reference to the lease in the plaint was obviously treated as a historical fact. That case is therefore directly in point. Following the said judgment, it must be held in the present case too that a suit is not barred by Section 69(2) if a statutory right or a common law right is being enforced.
Likewise, if the reliefs of permanent injunction or damages are being claimed on the basis of a registered trademark and its infringement, the suit is to be treated as one based on a statutory right under the Trade Marks Act and is, in our view, not barred by Section 69(2).
For the aforesaid reasons, in both these situations, the unregistered partnership in the case before us cannot be said to be enforcing any right “arising from a contract”. Point 1 is therefore decided in favour of the respondent-plaintiffs.”
Therefore, on perusal of the ratio laid down by the Hon’ble Supreme Court, it appears that the issues were already framed and basing upon the issues the plaintiff adduced evidence and they were properly cross-examined and entire evidence of plaintiff is completed and it is posted for evidence of the defendants. At this juncture filing of the additional written statement by pleading that there is substantial question of law, for which an additional written statement is not necessary at this juncture. More so, the said substantial question of law can be pleaded at the time of arguments and the duty cast upon the Court below to consider the applicability of substantial question of law even without specific pleading. Therefore, if it is allowed again
the issues should be framed and contrary statements would come in play and warrants further evidence of plaintiff. Therefore, the Court below has rightly held that if the application was allowed it amounts change of nature of suit, pleadings of written statement and lead further evidence. Therefore the order of Court below does not warrants any interference of this Court.
Therefore, the order of the Court below is in accordance with settled principles of law and does not warrants any interference of this Court and accordingly the present CRP is disposed of. No costs. As a sequel, interlocutory applications if any pending, shall stand closed. ______________________________________ JUSTICE VENKATESWARLU NIMMAGADDA
Dt:02.04.2026 krk
NOTE: LR Copy to be marked
THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
110
Civil Revision Petition No.1453 of 2025
Dt: 02.04.2026 Krk NOTE: LR Copy to be marked
Reproduced from the public record of the Andhra Pradesh High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.