Brijmohanlal Rathi v. Amin Chand Pyarelal — 1976 DIGILAW 108 (CAL)

JUDGMENT The judgment of the Court was as follows: The plaintiffs in this suit are Brijmohanlal Rathi and Ghar asbyamlal Maheswari and the defendant is a firm Amin Chand Pyarelal. The plaintiffs claim a decree for Rs. 1,73,565.00 alternatively, accounts and a decree for the amount found due with further interest and costs. 2. The plaintiffs have described themselves in the cause title as carrying on business as a registered partnership under the name and style of 'Shree Ratan Navaratan at 115, Canning Street, Calcutta. 3. The facts on which the plaintiffs' cause of action is based are rather complicated. It is the Case of the plaintiff, in the plaint that until the 30th November, 1961 the plaintiff No.1, that is, Brijmohanlal Rathi was the sole proprietor of and used to carryon business under the name and style of "Shree Ratan Nava Ratan", ft is alleged that in or about July, 1959 there was an agreement between the plaintiff No.1 and the defendant, a dealer in iron and steel goods, that there would be transactions between them involving payment of money on the part of the plaintiff No.1 and supply of goods on the part of the defendant. Apparently this agreement was oral. It is further alleged that pursuant to this agreement transactions were had between the parties and a mutual open and current account was maintained in respect thereof. 4. It is alleged that on the 1st December, 1961 the plaintiff No.1 took the plaintiff No.2 as his partner in the said business. It is alleged that since that date, i.e., the 1st December, 1961, the plaintiffs Nos. 1 and 2 have been carrying on the said business in partnership. It is specifically alleged that the partnership has been registered, 5. It is alleged that thereafter, in December, 1961 the plaintiff No.l. informed the defendant about the formation of the partnership and there was a further oral agreement between the plaintiffs and the defendant. 1 and 2 have been carrying on the said business in partnership. It is specifically alleged that the partnership has been registered, 5. It is alleged that thereafter, in December, 1961 the plaintiff No.l. informed the defendant about the formation of the partnership and there was a further oral agreement between the plaintiffs and the defendant. This agreement provided that the existing mutual open and current account between the plaintiff No.1 and the defendant would be continued and treated as an account between the new partnership of the plaintiffs and the defendant and that the dealings and transactions would be continued between the plaintiffs and the defendant in the same way and on the same terms as were had between the plaintiff No.1 and the defendant prior to the constitution of the partnership of the plaintiffs. 6. It is alleged that in June, 1962 accounts were gone into and adjusted and a sum of Rs. 3,21,000.00 was found lying to the credit of the plaintiffs in the said mutual, open and current account. It was agreed thereafter, between the plaintiffs and the defendant that the defendant would return a sum of Rs. 1,50,000/- out of the said amount to the plaintiffs leaving a balance of Rs. 1,71,000/- to the credit of the plaintiffs in the account. Against the said credit the defendant would supply goods to the value of the balance amount to the plaintiffs by the end of 1962. 7. It is alleged that on the 19th June, 1962 the defendant paid to the Plaintiffs a sum of Rs. 1,50,000/-, but there was failure and neglect on the part of the defendant to supply any goods to the plaintiffs. It is alleged that a third oral agreement was entered into between the parties, in February, 1964, whereby, it was agreed that the defendant would not be required to supply any goods to the plaintiffs but the defendant would return to the plaintiffs the paid balance amount of Rs. 1,71,000/ 8. The plaintiffs allege that this balance sum of Rs. 1, 71,000/- nor any part thereof has been paid by the defendant. On these facts, as .stated .above the plaintiffs instituted this suit on the 14th July, 1964. 9. A written statement bas been filed on behalf of the defendant. The defendant categorically denies that there is any partnership between the plaintiffs Nos. 1, 71,000/- nor any part thereof has been paid by the defendant. On these facts, as .stated .above the plaintiffs instituted this suit on the 14th July, 1964. 9. A written statement bas been filed on behalf of the defendant. The defendant categorically denies that there is any partnership between the plaintiffs Nos. 1 and 2 as alleged in the plaint. It is also denied that 'the business "Shree Ratan Nava Ratan" is a registered partnership. It is -denied that there was a mutual, open and current account as alleged in the plaint. It is further denied that there was any adjustment of the account between the plaintiffs and the defendant on the 19th June, 1962. The defendant alleges that at the request of the plaintiff No.1 a sum of Rs. 1,50,000/- was refunded in cash. It is admitted that at that point of time a sum of Rs. 1,46,000/- remained due to the plaintiff No.1. 10. Between November and December, 1962 the defendant alleges to have sold and delivered to the plaintiff No.1 in his said business a total quantity of 156. 150 metric tonnes of fabricated structural materials at the rate of Rs.1, 100/- per metric tonne. The defendant alleges that the total price of the said supplies being Rs. 1,71,765/- after adjustment of accounts, a sum of Rs. 25,765/- became due and payable by the plaintiff No.1 to the defendant. 11. The defendant bas claimed a set off in the following terms: "The defendant claims a decree for Rs. 25,765/- against the plaintiff and claims a set off for the said amount of Rs. 15,765/-against the plaintiffs alleged dues." The other allegation and contention in the written Statement need not be adverted to at present. 12. There was an amendment of this written statement by an order made in the suit on the 17th August, 1966. Pursuant to this amendment an additional written statement was filed on behalf of the plaintiffs on the 10th December 1966. 13. The following issues were raised and settled at the trial on the 5th September, 1974. l(a) Was the firm of Shreeratan Navaratan a registered partnership at the time of the institution of the suit? (b) If not, is this suit maintainable ? 2(a) Was there any agreement as alleged in paragraph 3 of the plaint? 13. The following issues were raised and settled at the trial on the 5th September, 1974. l(a) Was the firm of Shreeratan Navaratan a registered partnership at the time of the institution of the suit? (b) If not, is this suit maintainable ? 2(a) Was there any agreement as alleged in paragraph 3 of the plaint? (b) Were there transactions between the plaintiff No.1 and the defendant on the basis of such alleged agreement? 3(a) Was the plaintiff No.2 taken as partner of Shreeratan Navaratan as alleged in paragraph 6 of the plaint and was the partnership constituted as alleged in the said paragraph ? (b) Was the defendant informed about such alleged partnership? 4. Was there any agreement as alleged in paragraph 7 of the plaint? 5(a) Was there any taking of adjustment of and accounts as alleged in paragraph 8 of the plaint ? (b) Was the sum of Rs, 3.21,000/- found lying to- the credit of the plaintiffs on such alleged adjustment? (c) Was there any mutual, open and current account as alleged in the esaid paragraph ? 6(a) Was there any agreement as alleged in paragraph 9 of the plaint ? (b) Was the sum of Rs. 1,50.000/-paid by the defendant on the basis of such alleged agreement? 7(a) Was there any failure or neglect on the part of the defendant to supply any goods as alleged in paragraph 11 of the plaint ? (b) Was there any sale or delivery as alleged in paragraph 8 of the written statement? 8(a) Was there any promise by the defendant as alleged in paragraph 12 of the plaint? (b) Was the alleged account Kept open or was there any continuous account as alleged in the said paragraph? 9. Was there any agreement as alleged in paragraph 13 of the plaint? 10. Was there any promise by the defendant as alleged in paragraph 15 of the plaint ? 11. Are the plaintiffs entitled to any interest as alleged in the plaint or at all ? 12. Is the suit bad for misjoinder of parties? 13. Is the suit barred by the laws of Limitation? 14. To what relief, if any, is the plaintiff entitled? 14. One witness on behalf of the plaintiffs was examined debene esse on the 6tb June, 1972. At the trial after the raising of the issues another witness of the plaintiffs was also examined. 15. 13. Is the suit barred by the laws of Limitation? 14. To what relief, if any, is the plaintiff entitled? 14. One witness on behalf of the plaintiffs was examined debene esse on the 6tb June, 1972. At the trial after the raising of the issues another witness of the plaintiffs was also examined. 15. After the examination of this witness was over, it was contended on behalf of the defendants that the Court should first determine the question whether the plaintiffs constituted a registered partnership and if the Court found that the plaintiffs' firm was not registered, then the suit should be held to be not maintainable under the provisions of the Partnership Act and should be disposed of accordingly. It was contended an behalf of the plaintiffs on the other hand that the parties have joined issue on various points and there should not be a piecemeal bearing of the suit. Once the plaintiffs have started adducing their evidence, the entire evidence should be taken and all the issues should be disposed of. 16 This preliminary point was argued at length from the Bar and various decisions were cited and the parties invited the Court to decide this point first before proceeding with the rest of the suit. 17. This question raised at the initial hearing of this suit is not free from difficulties. To appreciate the point it is necessary at the out set to consider the relevant statutory provisions. Order XIV of the Code of Civil Procedure provides for settlement of issues and determination of suit on issues of law or on issues agreed upon. 17. This question raised at the initial hearing of this suit is not free from difficulties. To appreciate the point it is necessary at the out set to consider the relevant statutory provisions. Order XIV of the Code of Civil Procedure provides for settlement of issues and determination of suit on issues of law or on issues agreed upon. Rule 1(5) of this Order provides as follows : "At the first hearing of the suit the Court shall, after reading the plaint" and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall "thereupon proceed to frame and record the issues on which the right decision of the case appears to depend." Rule 2 provides as fo1lows : "Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined." Rule 4 of this Order provides that the Court may examine witnesses or documents before framing issues. 18. Order XV of the Code of Civil Procedure provides for disposal of a suit at the first hearing. Under Rule 1 of this Order, if the Court finds that the parties are not at issue on any question either of law or of fact, the Court is required to pronounce judgment immediately. Under Rule 2, where there are more than one defendant and any of such defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such a defendant and thereafter the suit shall proceed only against the other defendants. 19. Under Rule 2, where there are more than one defendant and any of such defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such a defendant and thereafter the suit shall proceed only against the other defendants. 19. Rule 3(1) of this Order, which appears to be of greater relevance in the instant case provides as follows ; "Where the parties are at issue on some question of law or of fact and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result "from proceeding with the suit forthwith, the Court may proceed to determine such issues and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues 'Only or for the final disposal of the suit." 20. The relevant Rules of this Court, are contained in Chapter XIV of the Original Side Rules. Rule 6 in this chapter provides as follows : "Where after a written statement has been filed by a defendant it appears that the only questions are questions not of fact but of law, or that it is desirable that any question of law should be decided before the issues of fact or that any of the issues of fact should be tried before the others or where it is shown that the settlement of issues would simplify the trial, or expedite the termination, or mattering diminish the costs of the suit, the Court may upon the application of either party, appoint a day for settling the issues and may for that purpose, where necessary postpone the day of bearing for final disposal of the suit. ,. Rule 7 provides for filing of a copy of issues in the minute book of the Court after the same are settled. 21. Mr. Somnatb Chatterjee learned Counsel on behalf of the defendants, has contended that the plea taken by the defendant was not in the nature of a demurrer. ,. Rule 7 provides for filing of a copy of issues in the minute book of the Court after the same are settled. 21. Mr. Somnatb Chatterjee learned Counsel on behalf of the defendants, has contended that the plea taken by the defendant was not in the nature of a demurrer. All that the defendant submitted was that an issue in the nature of preliminary issue be decided first. This preliminary issue was primarily an issue of law and the fact that some evidence documentary and oral bas been adduced, does not convert this issue into an issue of law. The relevant document in this case. i.e., the certificate of registration of the partnership firm of the plaintiffs, was disclosed as early as on 26th July, 1966. Under section 68 (2) of the Indian Partnership Act this copy was a conclusive proof of the registration or otherwise of the partnership and this could be tendered as proof without any further evidence being taken this certificate was a public document within the meaning of section 74 of the Evidence Act and certified copies of such records could be produced in proof of the contents of the public documents or part thereof under sections 76 and 77 of the Evidence Act. 22. It was contended that there was no bar either in the Code of Civil Procedure or in the High Court Rules to hear a suit piecemeal. In fact both the Rules of the High Court and Order XV Rule 3 of the Code of Civil Procedure contemplated a situation where the Court could try and hear one issue before disposing of the other issues. 23. It was contended further that the defendant should not be dragged to a prolonged trial on complicated facts and on long accounts if the defendant was able to non-suit the plaintiffs on a preliminary point as to the maintainability of the suit. If it was necessary for the Court to determine a primary fact or to take some evidence for this purpose the Court should do so and dispose of the suit accordingly. Whether such a preliminary issue would strictly be classified as a pure issue of law or a mixed issue of law and fact would make no difference to the position. 24. Mr. R. C. Deb and Mr. Whether such a preliminary issue would strictly be classified as a pure issue of law or a mixed issue of law and fact would make no difference to the position. 24. Mr. R. C. Deb and Mr. T. P. Das, learned Counsel for the plaintiffs contended on the other band that it was settled law that the Courts should not try a suit piecemeal. If a proceedings was appealable, it was all the mare necessary for the Court 'to dispose of all the points arising or brought before it so that on appeal the matter may not be remanded back for disposal of the issues on points left undetermined at the initial trial. 25. It was contended that under Rule 2 of Order XI-V of the Code of Civil Procedure the Court could try as a preliminary issue only a pure issue of law and not a mixed issue of fact and law. It was urged that the issue which was being sought to be tried as a preliminary issue by the defendants could by no stretch of imagination be called a pure issue of law inasmuch as the evidence of some sort was necessary in order to determine the same. In the instant case the plaintiffs had to adduce evidence to show that the firm was registered and if the defendant contended otherwise then it may have to adduce evidence to the contrary. 26. It was also contended that it would not be possible to dispose of this suit in its entirety by determining the question as to registration. In paragraph 8 of the written statement the defendant bad raised a defence by way of set off. Even if the plaintiffs were non-suited the defendant's claim of set off, on which they claimed a decree, would have to be gone into and determined by the Court. It was contended therefore, that in the entire facts and circumstances of this case, the Court should not and in fact could not dispose of the suit on the basis of one issue only. 27. A number of cases in support of the respective contentions of the parties were cited from the Bar, which are dealt with in their chronological order. 28. 27. A number of cases in support of the respective contentions of the parties were cited from the Bar, which are dealt with in their chronological order. 28. The earliest decision cited was a decision of a Division Bench of this Court in the case of (1) Yatindra Nath Chaudhuri & another v. Hari Charan Chaudhuri reported in AIR 1915 Calcutta, at page 87. In that case, the Subordinate Judge had raised 22 different issues in the trial of a suit. Thereafter the leaned Judge directed 11 of the said issues to be tried as issues of law wit bout any reception of evidence the Division Bench held that the issues which the Subordinate Judge treated as issues of law, in fact raised mixed question of law and fact and it would be illegal to treat such issues as involving only pure questions of law and to decide them as such without taking any evidence. Accordingly the order of the Subordinate Judge was set aside. 29. In their judgment the learned Judges considered Order 14, Rule 2 and Order 15, Rule 3 of the Code of Civil Procedure and observed, inter alia, as follows : "In the Courts of this country it has frequently been pointed out that the trial of a case piecemeal may lead to protracted litigation and serious inconvenience and involve the parties in heavy costs if the case is taken repeatedly on appeal to a superior tribunal". 30. In their judgment, their Lordships quoted the observations of the Judicial Committee in the case of Tarakant Bannerjee v. Puddomoney Dossee. reported in 1,0 Mooris Indian Appeals, at page 476, as follows: "It is much to be desired that in appeable cases the Courts below should as far as may be practicable, pronounce their opinion on all the important points, because the Courts below, by forbearing from deciding on all the issues joined not infrequently render necessary a remand in a case which might otherwise be finally decided on appeal; this is certainly a serious evil to the party litigant, as it may involve the expense of a second appeal as well as that of another bearing below." 31. The next decision cited also on behalf of the plaintiffs was a decision of the Privy Council in the case of (2) Mahomed Solaiman v. Birendra Chandra Singh & ors., reported in 50 Indian Appeals, at page 247, which also quoted with approval its earlier decision in the case of Tarakant Bannerjee v. Puddomoney Dossee (Supra). 32. The next decision on this point was cited on behalf of the defendant in the case of Sowkabai Pandharinath v. Tukojirao Holkar, reported in AIR 1932 Bombay at page 128. This decision is of a Division Bench of the Bombay High Court. In the facts before the Bombay High Court, the trial Judge had originally directed a preliminary issue to be tried and thereafter he directed three other issues to be tried along with it also as preliminary issues. From this direction there was an appeal to the Division Bench. 33. The Bombay High Court held that under Rule 2 of Order 14 it was not permissible for the Court to frame a preliminary issue of face. They went on to observe as follows : "No doubt when the Court has framed the issues which properly arise, the Judge may come to the conclusion that one or more of those issues should be tried first and independently, because the evidence on such issue or issues can be conveniently separated from the rest of the evidence and the finding on that issue or issues may render the trial of other issues unnecessary. I understand that a practice exists under which at times issues are framed on a summons taken out for that purpose, and that Judges do sometimes, wit bout framing all the issues which arise, frame particularly issues which raise questions of fact, which it is considered can be conveniently tried before other issues, and that was the practice which was adopted in the present case. But I think that is a dangerous practice, because unless the Judge has before him and present to his mind all the issues which arise, he may well fail to realise that the particular issue which he has framed neally depends on the answer to other issues." 34. The defendant relied on this decision for the proposition that it was permissible for the Court to determine first some of the issues after all the issues have been raised. 35. The defendant relied on this decision for the proposition that it was permissible for the Court to determine first some of the issues after all the issues have been raised. 35. The next decision cited on behalf of the defendant was the decision of the Privy Counsel in the case of (4) Naresh Mohan Thakur & Ors. v. Brijmohan Misra, reported in 37 Calcutta Weekly Notes, at page 355. The facts were that a suit had been filed by certain riparian owners against other riparian owners. The complaint of the plaintiffs was that a dam had been erected by the defendants across the river which, it was alleged, was affecting the right of the plaintiffs to uninterrupted supply of water and was causing damages. The plaintiffs claimed a declaration of such right of the plaintiffs of an uninterrupted supply of water and also an injunction against the defendants. The plaintiffs also claimed a named sum as damages for the injury suffered by the plaintiff and for further damages till the obstruction was removed. 36. At the end of the evidence of the first witness called by the plaintiffs the latter made an application that the determination of the extent of the loss sustained should be reserved by the Court till after the decree was passed in the suit. It was contended that this procedure would save time if the plaintiffs ultimately failed. The Subordinate Judge allowed this application of the plaintiff. The Subordinate Judge found that damages had been caused to the plaintiff but such damages would not be what had been claimed but what might be determined thereafter. On appeal, the High Court confirmed the finding of the Subordinate Judge but dismissed the claim for damages altogether on the ground that the plaintiffs ought to have adduced evidence at the trial and proved their damages, The High Court held that the Subordinate Judge should have decided the claim. 37. On these facts, the Judicial Committee held that the order postponing the determination of the amount of damages was a proper and convenient order. The judicial Committee also observed that the Court had inherent jurisdiction to determine bow a suit should be conducted before it. Judicial Committee held that the appeal of the plaintiffs should be allowed and the plaintiffs would be entitled to recover such damages as might be determined. The judicial Committee also observed that the Court had inherent jurisdiction to determine bow a suit should be conducted before it. Judicial Committee held that the appeal of the plaintiffs should be allowed and the plaintiffs would be entitled to recover such damages as might be determined. The matter was remitted to the Court below for the determination of such damages. 38. The next decision cited on behalf of the defendant was a decision of a Single Bench of the Bombay High Court in the case of (5) Fazlehussein Haiderbhoy Buxamusa and others v. Y usufally Adamji and others, reported in AIR 1955 Bombay, at page 55. In this case the High Court considered the scope of Rule 2 of Order 14 of the Code of Civil Procedure in the background of a preliminary issue raised as to the jurisdiction of the Court. The Court observed at page 57 of the report as follows: "In considering the preliminary issue the Court must look to the averments in the plaint and consider any objections which the defendant may choose to raise against the maintainability of the action on those averments. The question of jurisdiction which is raised by way of a demurrer has always to be decided on the allegations made in the plaint and not on the contentions that the defendant may raise. It is true that if the jurisdiction of the Court depends upon the proof of a fact and the question as to the existence or otherwise of that fact is canvassed, the parties may lead evidence in support of their respective cases before the preliminary issue as to the jurisdiction of the Court is decided. But in the present case there is no scope for recording evidence for arriving at a conclusion as to the existence of any fact on the proof of which alone the Court's jurisdiction depends," 39. The defendant cited this case as an authority for the proposition that even in trying a preliminary issue the Court may allow the parties to lead evidence before deciding the matter on such preliminary issue. 40. The next case cited by the defendant was another decision of a Single Bench of the Bombay High Court in the case of (6) Haridas v. Vijayalakshmi, reported in AIR 1956, Bombay at page 721, which followed the earlier decision of the Bombay High Court in the case of Sowkabai (Supra). 40. The next case cited by the defendant was another decision of a Single Bench of the Bombay High Court in the case of (6) Haridas v. Vijayalakshmi, reported in AIR 1956, Bombay at page 721, which followed the earlier decision of the Bombay High Court in the case of Sowkabai (Supra). 41. The last decision cited on this point by the defendant was Watanmal Boolchand v. N. V. Stoomvaart, reported in 63 Bombay Law Reporter, at page 702. Hence twenty issues had been raised on behalf of two defendants and seven issues on behalf of other defendants. It was contended that some of the issues should be tried as preliminary issues. The plaintiffs opposed such picking of issues for preliminary determination. 42. In this case the Court was primarily concerned with whether the issues which were sought to be tried first were issues of law or issues of fact. The Court held that Rule 2 of Order 14 of the Code of Civil Procedure applied only when some of the issues in a case were pure issues of law. The Court had first to determine whether there were any issue or issues which were pure issues of law and whether the case or any part of the case was capable of being disposed of on such issues. If it was found that both the conditions as stated above were satisfied, it was obligatory upon the Court to determine such issues of law as preliminary issues. 43. It was further observed in the judgment as follows: 'If in the determination of the aforesaid first condition the Court comes to the conclusion that there is no issue before it which is purely as to law but that all issues before it are only as to facts or even some of the issues be of mixed fact and law, the provision of O. XIV, R. 2 of the Code would not apply but the Court would yet have discretion to try one or more of such issues as preliminary issues. In such cases the Court, in exercising its discretion would, on the facts of the particular case before it, have to bear in mind the two well known but contracting principles, one being that to save waste of time and costs it would be desirable to dispose of the case on a preliminary issue if prima facie there are strong probabilities that such preliminary issue would dispose of the case, and the other being that this piecemeal trial of suits should be avoided with the view to obviate remands and thereby avoid litigation from being protracted." 44. The Supreme Court has considered the scope and effect of Rule 2, Order XIV of the Code of Civil Procedure in the case of (7) Major S. S. Khanna v. Brig. F. J. Dillon, reported in AIR 1964 SC 497 . The facts before the Supreme Court were that the Trial Court had dismissed a suit on a preliminary issue of maintainability. In appeal the High Court of Punjab in its revisional jurisdiction set aside the order and directed that the suit should be heard and disposed of according to law. The Supreme Court upheld the order of the High Court and dismissed the appeal. In the judgment Shah. J. considered the scope and effect of Rule 2 of Order XIV of the Code of Civil Procedure and held (at p. 502 of the report) as follows : "Under O. 14, R. 2 Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court, not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit". 45. On consideration of the respective contentions made on behalf of the plaintiffs as also of the defendant and the law cited, it appears to me that in the facts and circumstances of the instant case there is no scope for application of Rule 2 of Order XIV of the Code of Civil Procedure. The said Rule contemplates that a preliminary issue, that is, an issue of law, which by itself can dispose of the suit, should be determined first. An issue can only be a pure issue of law of there is no dispute between the parties as to the facts on which such issue arises. Therefore, if the defendant seeks an issue of law to be tried as a preliminary issue, then the defendant has to accept the facts as stated in the plaint and such a preliminary issue would really be in the nature of a demurrer. 46. But the question still remains that if after all the issues are raised and settled, can the Court pick out some of the said issues, though they are issues of fact or issues of mixed fact and law and try them first, if in the opinion of the Court the determination of the particular issue or issues is capable of disposing of the entire suit. The observations in the different judgments of the Bombay High Court are clear, though in some of the decisions cited before me, they were in the nature of obiter. Some indication on the point has been given in the judgment of the Privy Council in 37 CWN 355 (supra). The law, it appears to me, is that after the issues have been raised and settled, the Court has inherent jurisdiction to go to trial an some of the issued first. Some indication on the point has been given in the judgment of the Privy Council in 37 CWN 355 (supra). The law, it appears to me, is that after the issues have been raised and settled, the Court has inherent jurisdiction to go to trial an some of the issued first. though in trying the same, some questions of fact may have to be gone into. What the Court has to keeps in mind is the balance of convenience as the Bombay High Court observed in 63 Bombay Law Reporter, 702 (supra) that there are two well-known "contracting principles" in such cases before the Court. First, is that a preliminary issue might dispose of the case and thereby save time and casts and the other principle being that a piece-meal trial of suits should be avoided as it would result in protraction of litigation by reason of remand. A balance has to be struck; and it appears to me that the balance can be struck if it is kept in mind to what extent in trying an issue as a preliminary issue, the facts have to be gone into. If there are lengthy and complicated questions of fact, then such an Issue ought not to be picked out and tried as a preliminary issue, Secondly, if the facts in such an issue are inextricably connected with the facts in the other issues, again the said issue should not be chosen to be tried as a preliminary issue. Only, if the facts in an issue are of short compass and are independent and self-contained and do not have any bearing on the facts which may arise in consideration of the other issues, then such an issue may be chosen to be tried first, if by answering such an issue the entire suit may be disposed of. As the Supreme Court observed in Khama's Case (supra). such a procedure may be adopted exceptionally and not as normal practice. 47. In the instant case the only fact which need be determined for the issue which the defendant wants to be disposed of first, is whether the plaintiffs partnership firm has been registered or not. This fact bas no connection with the rest of the case in the plaint or the cause of action of the plaintiffs as pleaded in the plaint. This is only a jurisdictional fact. This fact bas no connection with the rest of the case in the plaint or the cause of action of the plaintiffs as pleaded in the plaint. This is only a jurisdictional fact. The evidence which is necessary, to determine this and which in fact has been led at the trial of the suit has no connection with the evidence necessary for the rest of the issues. Secondly, this fact is of a short compass and does not require a prolonged investigation. 48. In that view of the matter I hold that the Court, in the instant case, should try the Issues Nos. 1 (a) and 1 (b) first, and if it is possible to dispose of the case on these two issues, the Court ought to do so. To hold otherwise would lead to prolonged investigation and enquiry into other facts and accounts which may ultimately prove to be infructuous and unnecessary in the event the defendant succeeds on this issue. The alternative is a remand from an appeal, assuming the plaintiffs succeed there but in review of the short compass of the dispute the matter may not ultimately be protracted, therefore the issue to be considered now is as follows : 1 (a). Was the firm of Shreeratan Navaratan a registered partnership at the time of the institution of the suit? (b). If not, is this suit maintainable ? 49. The witness why was examined debene esse on this issue was Bijan Kumar Shome, He was the Registrar of Firms in the year 1964, He produced the original application of the firm for registration which was tendered and marked as Ext. A. He stated that this application was made on the 9th July. 1964 and that he saw it on that date. He checked this application, found it to be correct; passed it and asked his clerk to make the necessary entry in the register on the 9th July, 1964 He stated that the date 10th July 1964 has been mentioned on the document and the rubber stamp with his signature on its reverse indicated that he had registered the firm on the 10th July, 1964. The seal and the stamp were put under his direction. He identified his initials on other parts of the document. In the register; the wording of column 2 was "date of filing or registration". The seal and the stamp were put under his direction. He identified his initials on other parts of the document. In the register; the wording of column 2 was "date of filing or registration". Under this column two dates appeared, the first date was 9th July, 1964 which, according to him, was the date of submission of the application and the other on the 10th July, 1964, was the date of registration of the firm. He bad asked his clerk to make the entry in the register on the 10th July 1964 the register was however produced before him for his signature on the 24th July, 1964. In answer to questions from the Court, the witness could not explain why the register was put up for his signature 14 days after the gave directions for the entries to be made. 50. In cross-examination he stated that on the 9th July, 1964 he received the application but he did not sign it. But on the 10th July he again saw the application and passed it and asked his clerk to register it, that is to make the necessary entries in the register. He could not identify the clerk whom he had so directed. He admitted that he was deposing on the basis of the practice in his office and not from his actual recollection. After he signed the register on the 24th July, 1964 only then he could have given a copy of this entry. 51. The other witness examined at the trial was Sudhir Rarjan Bhakta, who was the head clerk of the Registrar of Firms since 1947. He stated that the application for registration (Ext. A), was in form No.1. He saw this application for the first time on the 10th July, 1964. His initials appeared in the third page of this form. On the first page of Ex.A. the signature of the Clerk-in-Charge of the Receiving Section, appeared as also the signature of the Chasier, the practice was that the Chashier would out his signature and date after receiving the registration fee. 52 The witness identified the docket number of Ex. A at the fourth page which had been put by Nani Gopal Mazumdar, an office clerk. After the witness had checked the document on the 10th July, 1964. 53. 52 The witness identified the docket number of Ex. A at the fourth page which had been put by Nani Gopal Mazumdar, an office clerk. After the witness had checked the document on the 10th July, 1964. 53. Shown the relevant entries in the register he could not say on which date he made the entries on the register. But he stated that the dates under the second column, i. e, 9th July, 1964 and 10th July, 1964 indicated that the 9th July was the date of filing of the statement and 10th July was the date of registration. The entries in the register were all in his hand writing but he could not remember whether all the entries were written by him at a single sitting The Registrar signed the entries on the 24th July, 1964. 54. In cross-examination he stated that the procedure was that the application for registration used to be submitted first to the Cashier and fee was paid and recorded. From the Cashier the application went to the Diary Clerk for making a note in the diary. From the Diary Clerk the application from went to the Registrar for his perusal. After the perusal by the Registrar, the application form went to the head clerk for checking up After checking up the form goes to the Docketing Clerk and after docketing the application form went back to the Head Clerk for making the entry in the register. After the entries were made in the register the intimation form and the certificates are filled up and thereafter the register was put up before the Registrar by some peon. He could not say when this register (Ext. B) was sent to the Registrar for signature in respect of any particular entry. 55. He stated that when this application from (Ext. A) went to the Registrar for the first time on the 10th July, 1964 the Registrar put his initials on it. This indicated that the registration would be on that particular date. He stated that the practice however was that the application went to the Registrar twice. The first time the Registrar does not sign it but on the second time he did. 56. This indicated that the registration would be on that particular date. He stated that the practice however was that the application went to the Registrar twice. The first time the Registrar does not sign it but on the second time he did. 56. On the basis of the evidence, documentary and oral, as noted above, it has been contended on behalf of the plaintiffs that the registration of the firm prior to the filing of this suit, i. e, on the 10th July, 1964 has been sufficiently proved. It has been contended on behalf of the defendant on the other hand that the evidence clearly showed that the registration of the firm was not and could not have been effected before the 24th July, 1964, long after the filing of the suit. 57. Section 58 of the Indian Partnership Act and the sub-sections thereunder provide for application for registration. The section speaks of prescribed form and fee. The prescribed form duly filled in has to be made over to the Registrar either by post or by personal delivery. Section 59 relates to actual registration. The language of the section is as follows ; "59. When the Registrar is satisfied that the provisions of Section 58 have been duly compliant with, he shall record an entry of the statement in a register called the register of Firms, and shall file the statement". . 58. The marginal note of this section is "Registration" It appears to me that under this section the Registrar has to first satisfy himself that the provisions of section 58 have been duly complied with, that is, the applicants have made their application in the proper form accompanied by the proper fee and that the statement has been signed by all the partners and duly verified. After the Registrar has so satisfied himself he is to carry out two further acts. He has to record an entry of the statement in a register called the "Register of Firms" and he has also to file the statement which had been submitted under section 58. For a proper registration these three things must be done 59. After the Registrar has so satisfied himself he is to carry out two further acts. He has to record an entry of the statement in a register called the "Register of Firms" and he has also to file the statement which had been submitted under section 58. For a proper registration these three things must be done 59. In the instant case, it appears from the evidence given by the Registrar that the application of the partnership firm in the prescribed form came to him on the 10th July 1964 and that he satisfied himself that the provisions relating to such application form have been complied. With But then it is also clear that he did not himself record an entry in the register and also he did not file the statement himself. He could not even say who made the entry in the register. No doubt the acts of making the entries in the register and filing the application form are ministerial acts and according to usual practice such administrative functions may be delegated. But, it is not the evidence of the Registrar that he asked anybody in particular to make this entry on the 10th July, 1964 of directed any body else to file the statement. He only expected that the routine in his office would be followed. No rules have been shown whereby the Registrar could delegate his authority and power under section 59. In fact, it was the practice of Registrar to sign the register in respect of all entries made therein. This appears to establish that the recording of an entry within the meaning of section 59 of the Indian Partnership Act would be effected only when the Registrar signed the register which made the entries in the register those of the Registrar. 60. In any event, it has not been proved when the entries were in fact made in the register. Sudhir Ranjan due to his lack of memory could not throw any light in the matter. The entries were admittedly by signed by the Registrar on the 24th July, 1964. In this slate of evidence it cannot be held that the entries were recorded in the register within the meaning of section 59 of the Indian partnership Act before the 24th July 1964. 61. The entries were admittedly by signed by the Registrar on the 24th July, 1964. In this slate of evidence it cannot be held that the entries were recorded in the register within the meaning of section 59 of the Indian partnership Act before the 24th July 1964. 61. It may also be noted that the witnesses have not been able to explain the entries in the register under column, II. The heading of column II is "Date of filing or registration". Under section 59 the Registrar has to make an entry and also to file the statement. These mayor may not be done simultaneously or on the same date. It was not necessary for the Registrar to put in two dates used in this column. Two dates, having been put had to be explained by oral evidence. But the witnesses, could not explain anything positively except to describe the procedure usually followed. Even as to the procedure their evidence was not consistent. 62. The witnesses assumed and deposed that when an application was made under section 58 of the Act for registration of a firm, the Registrar was competent or otherwise empowered to fix and determine the date of registration. This belief appears to be erroneous and misconceived. Under the Indian Partnership Act the Registrar has no power to determine what should be the date of registration. He can only comply with the provisions of the Act and in particular, of section 59. Only when section 59 is complied with it can be stated that the applicant firm has been duly registered. By merely directing the subordinates to file or to docket or to write out or to copy out the statement in the Register. in my opinion, would not amount to sufficient compliance with section 59 of the Act. 63. The position becomes clearer if one looks into the other sections in the Act relating to registration. Under section 66 of the Act the register is open to inspection by any person on payment of the prescribed fee. This provision is important. The world at large can have inspection of the register and find out whether a particular firm has been duly registered or not. If no entry is made in the Register on a particular date or if some entries are made but are not signed by the Registrar, then their cannot be any inspection under this section. The world at large can have inspection of the register and find out whether a particular firm has been duly registered or not. If no entry is made in the Register on a particular date or if some entries are made but are not signed by the Registrar, then their cannot be any inspection under this section. Under section 67 the Registrar is bound on application by any person after payment of the prescribed fee, to give certified copy of the entries in the register. If no entry is made in the register then such a copy C3nnot be furnished. In fact, in his evidence the Registrar fairly conceded that before he signed the register on the 24th July, 1964 he could not have given a copy of the entries. 64. For the reasons as slated above, I hold that the plaintiffs have failed to prove that their partnership firm was registered prior to the filing of this smt. The consequence of such non-registration is clear from section 69 of the Indian Partnership Act. Sub-sections (1) and (2) of this section provide as follows: "69. (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." 65. In support of the contention that the suit was not maintainable because of non-registration of the plaintiff firm the learned counsel for the defendant cited the case of (8) Ramprasad Thakurprarad v. Kamtaprasad Sitaram, reported in AIR 1935, Allahabad at page 898. The Allahabad High Court held that the provisions of Section 69 were mandatory and before instituting a suit a firm must be duly registered and the Registrar must have recorded the person suing as a partner in the firm. The Allahabad High Court held that the provisions of Section 69 were mandatory and before instituting a suit a firm must be duly registered and the Registrar must have recorded the person suing as a partner in the firm. Subsequent registration of the firm and amendment of the plaint did not cure the defect and make the suit a valid one. 66. On interpretation of statutes some decisions were cited. One of the cases cited was (9) Suprabhat Chandra v. Bhupati Bhusan Mondal reported in 40 CWN at page 773. This decision discusses the difference between substantive law and procedural law. In the facts and circumstances before me, this decision is not of much assistances. The more relevant decision cited was a decision of the Supreme Court in the case of (10) Commissioner of Income Tax. Andhra Pradesh. Hyderabad v. M/s layalakshmi Rice and Oil Mills Contractor Co., reported in AIR 1971 Supreme Court at page 1015. The facts before the Supreme Court were that the assessee firm was constituted under a deed of partnership dated the 6th October, 1955 and came into existence with effect from the 5th November, 1954. The assessee filed an application under section 26A of the Indian Income Tax Act, 1922 for registration of the firm under the said Act. This application was received by the Income Tax Officer on the 14th October 1955. Thereafter on the 20th October. 1955 the assessee filed before the Registrar of Firms a statement under section 58 of the Indian Partnership Act. On the 2nd November. 1955 the Registrar of Firms filed the statements of the assessee and made entries in the Register of Firms. 67. The Income-Tax Officer refused to register the firm under the Income Tax Act on the reason that the application had not been made in time. The question whether the application before the Income Tax Officer was made in time or not depended on whether the firm was registered under the Indian Partnership Act or not. If the assesse firm was registered under the Partnership Act then the assessee could have made this application before the end of the previous year of firm. But if the assessee firm was not so registered, then it was out of time. The Supreme Court considered sections 58 and 59 of the Indian Partnership Act. If the assesse firm was registered under the Partnership Act then the assessee could have made this application before the end of the previous year of firm. But if the assessee firm was not so registered, then it was out of time. The Supreme Court considered sections 58 and 59 of the Indian Partnership Act. The Supreme Court approved the decision in Ramprasad Thakurprasad v. Kamta Prasad, (Supra), for the proposition that the Registration of a firm under the Partnership Act takes place only when the necessary entry is made in the register. The Supreme Court observed that under section 69 of the Partnership Act, registration of a firm subsequent to the filing of the suit did not cure the defect. At page 1016 of the report the Supreme Court observed as follows : - "Thus under the Partnership law it can be take to have been settled by decisions of High Courts from a long time that the registration of a firm takes place only when the necessary entry is made in the register of firms under section 59 of the Partnership Act by the Registrar. It is true that subsection (1) of section 58 employs language which without anything more may lend support to the view that the registration of a firm may be effected merely by sending an application which would mean that as soon as an application is sent and if entry is made under section 59 pursuant to it the registration would be effective from the date when the application was presented. But section 58 (1) is not to be read in isolation and has to be considered along with the scheme of the other provisions of the Act, namely section 59 and section 69. The latter section may not have a direct bearing on the point under our consideration but it throws light on what was contemplated by the legislature with regard to the point of time when the firm could be regarded as registered." 68. The case, (11) State of U. P. v. Manbodhan Lal Srivastava, reported in AIR 1957, Supreme Court at page 912 was cited on behalf of the plaintiff for the proposition that the use of the word "shall" in a statute though generally taken in a mandatory sense did not mean that in every ease it would have that effect. The case, (11) State of U. P. v. Manbodhan Lal Srivastava, reported in AIR 1957, Supreme Court at page 912 was cited on behalf of the plaintiff for the proposition that the use of the word "shall" in a statute though generally taken in a mandatory sense did not mean that in every ease it would have that effect. The Supreme Court in this judgment quoted with approval the observations of the Privy Council in the case of (12) Molltreal Street Rly Co. v. Normandin, reported in 1917 AC at page 170, as follows: "The question whether provisions in a statute are directory or imperative bas very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th ed., p. 596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of that, though punishable, not affecting the validity of the acts done." 69. On the strength of this decision learned counsel for the plaintiff 'Contended that if the language of section 59 of the Indian Partnership Act, was to be construed literally then it would lead to injustice at the plaintiffs' valid claims will be defeated. This contention does not appear to be of much substance. The Court cannot consider justice or injustice from the point of view of one party only, but has to see that injustice is not done to any of the parties. A firm which does not take the trouble of getting duly registered before it files a suit may mislead the defendant, who after inspection of the Register may very well take up the only defence that the suit is not maintainable. In such a case it would not be dispensing justice if the provisions of the statute are relaxed in favour of the plaintiff. 70. In such a case it would not be dispensing justice if the provisions of the statute are relaxed in favour of the plaintiff. 70. For the reason and finding as stated above, I answer the issues Nos. 1 (a) and 1 (b) both in the negative and in favour of the defendant. 71. The question still remains if the determination of this issue disposes of the entire suit, As stated before, it bas been contended on behalf of the plaintiffs that the defendants having made a claim for set off, the dispute as to the defendant's claim still remains and has to be disposed of on merits. 72. On a closer review of the issues and the pleadings this contention of the plaintiff cannot also be accepted. In spite of a specific pleading of set off in paragraph 8 of the written statement, no issue has been raised or joined by the defendant in respect thereof. The nearest issue on the point is issue No.7 which is as follows: "Was there any failure or neglect on the part of the defendant to supply any goods as alleged in paragraph 11 of the plaint ?" The issue No 14 is "To what relief if any, is the plaintiff entitled ?" No issue of set off having been raised, the same calls for no determination and the defendant cannot be permitted to urge the same. In any event, whether the defendants do claim set off or not by reason of the answer to Issue No.1 (a) and 1 (b) this suit so far as the plaintiffs and concerned comes to an end. I hold that by reason of the answer to issues 1 (a) and 1 (b) the entire suit is disposed of. 73. This suit is not maintainable and is dismissed with costs.