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1974 DIGILAW 270 (KAR)

P. RAGHURAMA SHETTY v. B. C. SAVADI

1974-11-29

HONNAIH

body1974
( 1 ) THIS is a revision petition against the decree of the Prl Munsiff, Chikodi in Small Cause Suit No. 13 of 1971 decreeing the suit of the plaintiff against defendant 1. ( 2 ) THE plaintiff brought the suit on the allegation that it was a registered firm. The deiendant denied this allegation in the written statement. On the question whether the plaintiff was a firm registered under the Partnership Act, the Munsiff decided in favour of the plaintiff on the oral statement of PW. 1, one of the partners of the firm. ( 3 ) ON behalf of the petitioner it was urged that the trial Court was wrong in deciding the issue on the oral evidence. Under S. 69 (2), Partnership act, 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 registerd and the persons suing are ox have been shown in the register of Firms as partners of the firm. S. 91, Evidence Act, lays down that in all cases in which any matter is required by law to be reduced to writing, no evidence shall be given in proof of such matter except the writing itself ox secondary evidence of it in cases in which such evidence is admissible. ( 4 ) UNDER S. 68 (2), Partnership Act, a certified copy of an entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm, and of the contents of any statement, intimation or notice recorded or noted thereon. Under S. 67, the registrar is empowered to grant certified copies. The register of firms is a public document and the requirements of S. 69 (2) are complied with by producing a certified copy of an entry from this register. The primary evidence of a document is the document produced for the inspection of the court and secondary evidence means and includes certified copies given under S. 76 of the Evidence Act. Under S. 64 of that Act documents must be proved by primary evidence except in cases mentioned in S. 65. Under s. 65 (e) a certified copy of a public document but no other kind of secondary evidence is admissible to prove the orignial. Under S. 64 of that Act documents must be proved by primary evidence except in cases mentioned in S. 65. Under s. 65 (e) a certified copy of a public document but no other kind of secondary evidence is admissible to prove the orignial. ( 5 ) IT will be thus clear that the evidence of PW. 1 is not admissible as secondary evidence to prove the fact of registration. It is not enough to prove that the firm was registered, but it must also prove that the persons suing are or have been shown in the Register of Firms as Partners of the firm. There is no evidence that the partners have been shown in the Register of Firms. That fact could be proved only by producing a copy of the entry from the Register of Firms. That having not been done, the court below fell into an error in relying on the evidence of PW. 1 and holding that the requirements of Sec. 68 (2) of the Partnership Act were satisfied. The plaintiff's suit should have bean dismissed on this ground. On the merits also, there is no case for the plaintiff. The plaintiffs case was that tea was supplied to the canteeen run by defendant 1 through defendant 2, who was working as a servant in the canteen under defendant 1. Defendant 2 denied having taken any tea from the firm of the plaintiff, and having given the same to defendant 1. There is no evidence that defendant 2 was working under defendant 1. Defendant 1 has in his evidence stated that no tea was supplied to him through defendant 2. Except the evidence of PW. 1 that the supplied tea through defendant 2, there is no other evidence. Even if the version of PW. 1 is accepted, a decree could have been passed only against defendant 2 and not against defendant 1. In these circumstances, the Court below was not justfied in decreeing the suit against defendant 1. ( 6 ) IN the result, this revision petition is allowed. The decree of the court below is set aside and the suit of the plaintiff is dismissed with costs. --- *** --- .