JUDGMENT R.L. KHURANA, J.—The plaintiffs have filed the present suit praying for the following reliefs: (a) decree for recovery of Rs. 11,21,075/- with costs and future interest; and (b) specific performance of the agreement dated 25.6.1990. The plaintiffs have averred that they are registered mining contractors. The State of Himachal Pradesh decided to auction a State Quarry known as "New Fagu Dhar" in Sub-Tehsil Balichowki, District Mandi. The auction was held on 18.10.1989. The plaintiffs were the highest bidders in such auction. Their bid for Rs. 2,01,500/- was accepted and the mining lease was granted in their favour from 7.5.1990 for a period of five years. The plaintiffs, on the date of auction, that is, on 18.10.1989 deposited the requisite security amount of Rs. 50,375/-. A further sum of Rs. 50,375/ representing the first instalment of the bid amount was also deposited on the same day. A formal agreement qua the lease came to be executed between the parties on 25,6.1990. The plaintiffs started the work of quarry on 10.5.1990. A sum of Rs. 2,48,000/- was spent by the plaintiffs as advance payments to the labourers engaged for working the quarry, which was located in Khasra No. 117/1. The plaintiffs also filed hired diesel engines, rope ways and got the same fixed and installed at the site by spending a sum of Rs. 91,600. Second instalment of Rs. 50,375/- towards bid amount was also paid on 10.8.1990. The plaintiffs have further averred that on or around 10.5.1990 they had incurred a total expenditure of Rs. 8,91,825/ - The plaintiff could extract slates from the quarry only to the extent of Rs. 70,000/-. The defendants, without any prior notice or affording an opportunity to the plaintiffs, cancelled the agreement on 15.5.1991 as a result of which the plaintiffs suffered a loss to the extent of Rs. 8,21,825/ which they are entitled to recover from the defendants. The plaintiffs have further claimed interest at the rate of 18% per annum on the said amount amounting to Rs. 2,99,250/-. Thus, a total sum of Rs. 11,21,075/- has been claimed. 2. The defendants while resisting the suit admitted that the plaintiffs were the highest bidders at the auction and that mining lease qua Khasra No. 117/1 was granted in their favour view agreement dated 25.6.1990 for a period of five years beginning from 7.5.1990. 2,99,250/-. Thus, a total sum of Rs. 11,21,075/- has been claimed. 2. The defendants while resisting the suit admitted that the plaintiffs were the highest bidders at the auction and that mining lease qua Khasra No. 117/1 was granted in their favour view agreement dated 25.6.1990 for a period of five years beginning from 7.5.1990. It was pleaded that on the objection raised by the Forest Department, the land comprising of Khasra No. 117/1 was found to be forest land and could not be broken for mining purposes without the permission/approval of the Central Government. Therefore, the lease granted to the plaintiffs was cancelled with effect from 6.5.1991 in public interest and on the representation of the plaintiffs themselves alternative site comprising of khasra Nos. 123, 125 and 171 was allotted to the plaintiffs to undertake mining operations. It was further averred that no financial loss whatsoever was suffered by the plaintiffs since alternative site was allotted and plaintiffs have been carrying out mining operations in such alternative site. 3. On the pleadings of the parties, following issues were framed on 26.7.1994:— 1. Whether the plaintiff has no enforceable cause of action, as alleged in the written statement? OPD 2. Whether the mining quarry originally leased out to the plaintiff were cancelled without notice and giving an opportunity to the plaintiff to make a representation in accordance with Clause 30 of the contract entered into between the parties, inter se, as alleged? OPP 3. Whether by substitution of the slate quarry on the request of the plaintiffs, the plaintiff has suffered any loss due to the wrongful acts of the defendants, as alleged? OPP 4. In case issue No. 3 is decided in the affirmative, to what damages the plaintiff is entitled to recover and from whom? OPP 5. Relief. I have heard the learned Counsel for the parties and have also gone through the record of the case. 4. The learned Counsel for the defendants at the very out-set has raised a legal objection as to the maintainability of the suit. It has been contended that since the lease was granted to a partnership firm and the plaintiffs are partners, the suit is hit by Section 69 of the Partnership Act (for short: the Act) for want of registration. The learned Counsel for the defendants at the very out-set has raised a legal objection as to the maintainability of the suit. It has been contended that since the lease was granted to a partnership firm and the plaintiffs are partners, the suit is hit by Section 69 of the Partnership Act (for short: the Act) for want of registration. Section 69(2) of the Act provides : "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." The Supreme Court in Loomkaran Sethia, etc. v. Mr. Ivan John and others, (AIR 1977 SC 366) has held that the provisions contained in Section 69 of the Act are mandatory in character. 5. The provisions contained in Section 69(2) of the Act, quoted above, specifically bars the institution of a suit by or on behalf of a firm to enforce a right arising from a contract unless the conditions specified therein are satisfied. The two requirements which must be fulfilled before a suit can be instituted to enforce a contractual right by the firm or on behalf of the firm are : (a) that the firm is a registered one; and (b) that the persons suing are or have been shown in the register of firms as partners of the firm. Since the above conditions are for the institution of the suit, the relevant date with respect to which these conditions must be satisfied is the date of institution of the suit. In other words, the firm must be registered one and persons suing must either be partners or persons whose names are shown in the register of firms as partners as on the date of the institution of the suit. Both the conditions being mandatory must be fulfilled. If either of these conditions is not fulfilled, the suit would be incompetent. 6. In Sri Baba Commercial Syndicate and another v. Channamasetti Dasu and another, (AIR 1968 AP 378) it has been held that the bar under Section 69 of the Act hits at the very root of the case, that is to say, it bars the very institution of the case. 7. In Malhotra and Co. 6. In Sri Baba Commercial Syndicate and another v. Channamasetti Dasu and another, (AIR 1968 AP 378) it has been held that the bar under Section 69 of the Act hits at the very root of the case, that is to say, it bars the very institution of the case. 7. In Malhotra and Co. Chandigarh v. Ramesh Mistri, (AIR 1971 P&H 212), the following observations made in Krishan Lal Ram Lai v. Abdul Ghafur Khan, (AIR 1935 Lah 893) were quoted with approval; "Section 69 of the Partnership Act, 1932, says that no suit falling within its purview shall be instituted. It is the institution of the suit that is barred. Hence, an unregistered firm cannot file a suit nor can it after filing get the suit stayed till it gets itself registered. The suit, must be dismissed, but the dismissal of the suit will be no bar to a fresh suit after registration, if it is within time, for the present decision not being on merits cannot obviously operate as res judicata." 8. The Supreme Court in Lookaran Sethia, etc. v. Mr. Ivan E. John and others (supra) while holding that Section 69 of the Act is mandatory in character, has further held that the effect of the Section is to render a suit by the plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as partner of an unregistered firm, whether existing or dissolved, void. Following the ratio laid down by the Supreme Court, the High Court of Calcutta in In the matter of Abani Kanta Pal, (AIR 1986 Cal 143), has held that if a firm is not registered, excepting a suit as contemplated by Section 69(3) of the Act, the Court will have no jurisdiction to entertain the suit in violation of Section 69(1) or 69(2) of the Act. In other words, the plaint that has been filed by the plaintiff will be considered a void plaint, if it contravenes the provisions of sub-sections (1) and (2) of Section 69 of the Act. If the plaint is void, there can be no question of amendment of such a plaint. 9. In other words, the plaint that has been filed by the plaintiff will be considered a void plaint, if it contravenes the provisions of sub-sections (1) and (2) of Section 69 of the Act. If the plaint is void, there can be no question of amendment of such a plaint. 9. The High Court of Bombay in Govindmal Gianchand v. Kunj Biharilal and others, (AIR 1954 Bom 364) has held that the provisions of Section 69 are mandatory and unlike their counterpart in England, there is no power in the High Court to grant to the defaulting partnership any relief against the disability imposed by the section. The section debars an unregistered firm from filing a suit and it does not confer any right on the defendant which he could waive at his option. Its effect is that a suit by an registered firm is at its inception bad, and the moment the Court is satisfied that the plaintiffs are an unregistered firm it must treat the suit as not having been filed and dismiss it. No act of the defendant can make a suit good which is at its inception bad and therefore, the consent of the defendant in such a suit cannot enable the Court to pronounce a decree in favour of the plaintiffs who are found to be an unregistered firm. 10. The learned Counsel for the plaintiffs while conceding that the right sought to be enforced by the present suit has arisen from the agreement dated 25.6.1990 (Ex. P-2), has contended that the present suit is competent and legally maintainable. In support, the learned Counsel has raised the following two contentions : (i) the agreement Ex. P-2 was entered into by the plaintiffs jointly in their individual capacity and not as partners of a firm; and (ii) since no such objection was raised by the defendants in their written statement, they are debarred and precluded from raising such an objection at this belated stage. 11. The learned Counsel for the defendants, on the other hand, has contended that the material coming on the record especially in the form of admissions by the plaintiffs, the two plaintiffs constitute a partnership firm and the agreement Ex. P-2 was entered into by them in their capacity of being the partners of a firm. 11. The learned Counsel for the defendants, on the other hand, has contended that the material coming on the record especially in the form of admissions by the plaintiffs, the two plaintiffs constitute a partnership firm and the agreement Ex. P-2 was entered into by them in their capacity of being the partners of a firm. It has further been contended that the objection as to the bar to the suit under Section 69 of the Act is a legal objection going to the very root of the suit, can be raised at any time and even at the appellate stage. Contention No. (i) 12. As stated above, the case of the plaintiffs is that agreement Ex. P-2 was entered into by them jointly in their personal capacity and that they did not constitute a partnership firm. Therefore, the suit filed by them jointly in their individual capacity as joint lessees of the mine is competent and Section 69 of the Act has no application. 13. Admittedly, the two plaintiffs are real brothers. Before the framing of issues, plaintiff Vinod Kumar was examined by this Court under Order 10, Rule 1, Code of Civil Procedure, on 23.6.1994. In such statement, the plaintiff Vinod Kumar has admitted to the following facts : "I and my brother (Plaintiffs) are carrying on joint business and constitute a firm known as Vinod Kumar Krishan Kumar, which is a registered firm." 14. Apart from the above admission by the plaintiff Vinod Kumar under Order 10, Rule 1, Code of Civil Procedure, it is significant to note that while appearing as PW 1 on 8.8.1997, the said plaintiff Vinod Kumar has described himself as "Partner of M/s. Vinod Kumar Krishan Kumar". In his examination-in-chief, he has stated in the following terms : "Being the highest bidder, the mines at Fagu Dhar were leased to M/s. Vinod Kumar Krishan Kumar for extracting slates." 15. Plaintiffs No. 2 Krishan Kumar has appeared as PW 5 in the witness box on 20.10.1997. In answer to court question, he has made the following admission: “It is correct that the lease in question of extracting slates had been obtained by the firm in the name of M/s. Vinod Kumar Krishan Kumar and agreement Ext. P-2 was entered upon by this firm with the Himachal Pradesh Government. In answer to court question, he has made the following admission: “It is correct that the lease in question of extracting slates had been obtained by the firm in the name of M/s. Vinod Kumar Krishan Kumar and agreement Ext. P-2 was entered upon by this firm with the Himachal Pradesh Government. Partners of this firm were Vinod Kumar, plaintiff No. 1 and Krishan Kumar, plaintiff No. 2." Though in view of the answer to the above Court question, an opportunity was afforded to the Counsel for plaintiffs for re-examination of PW 5, no re-examination was undertaken in order to elicit an explanation, if any, with regard to the above admission. Therefore, it will have to be presumed that the version given by PW 5 (Plaintiff No. 2) in his answer to the Court question, stands admitted by the plaintiffs that the plaintiffs constitute a partnership firm and the agreement Ex. P-2 was entered into by the plaintiffs as partners of such firm. This contention No. (1), therefore, has to be rejected and it is accordingly rejected. It is held that the plaintiffs constitute a partnership firm and the agreement Ex. P-2 was entered into by them in their capacity as partners of the firm Messrs. Vinod Kumar Krishan Kumar. Contention No. (ii). 16. Admittedly, no objection as to non-registration of the firm Messers. Vinod Kumar Krishan Kumar and as to the bar of Section 69 of the Act has been taken by the defendants in their written statement. The question, therefore, which requires determination is whether the defendants can be permitted to raise such an objection at the stage of final hearing of the case? 17. In Goverdhandoss Takersey v. M. Abdul Rahiman and another, I (AIR 1942 Mad 634), it was held that the plea with regard to the bar to I the suit under Section 69(2) of the Act being one of law can be raised I for the first time in appeal if all the facts necessary for its determination I are on the record. 18. In Sunderlal and sons v. Yagendra Nath Singh and another, (AIR 11976 Cal 471), a decree obtained by an unregistered partnership firm I was sought to be executed. One of the objection raised on behalf of the I judgment-debtor therein was that execution being sought by an unregistered I firm was not permissible. 18. In Sunderlal and sons v. Yagendra Nath Singh and another, (AIR 11976 Cal 471), a decree obtained by an unregistered partnership firm I was sought to be executed. One of the objection raised on behalf of the I judgment-debtor therein was that execution being sought by an unregistered I firm was not permissible. A contention was raised by the decree-holder I firm that no objection as to the bar of Section 69 of the Act having been I raised, such objection was not available during the execution proceedings. 19. Honble Sabyasachi Mukharji, J. of the Calcutta High Court (as I his Lordship then was ) after referring to the provisions contained in Section 169 of the Act has observed in para 4 of the judgment in the following terms: "In this case the decree has been passed. If the decree is a nullity then of course, this point can be taken. But the question is whether a decree passed without this point having been taken is nullity or not. In view of the language of the section, in my opinion, a plaint filed by an unregistered firm would not be a plaint at all. If that be so, all proceedings there under will be proceedings without jurisdiction... .” Relying on the ratio laid down in Surajmall Nagoremullv. Triton Insurance Co. Ltd. (AIR 1925 PC 83) and in the case of Gopinath Mitilal v. Ramdas (AIR 1936 Cal 133), it was held that an objection as to the bar to the suit under Section 69 of the Act could be raised even during the execution proceedings. The Honble Judge has further held: "Jurisdiction as observed by Lord Reid in the case of Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147, at p. 171, of the report is the entitlement of the Tribunal to enter upon the inquiry in question. That entitlement in my opinion can only arise from a competent plaint instituted by a plaintiff. If the plaint was incompetent, there was no plaint. There was no suit. Ex facie and without any dispute there was no valid suit. A decree based on such a patent and indisputable error would be an error of jurisdiction and decree passed on such error would be nullity. If, however, the error depends upon adjudication of disputes, either of fact or law different considerations would apply. There was no suit. Ex facie and without any dispute there was no valid suit. A decree based on such a patent and indisputable error would be an error of jurisdiction and decree passed on such error would be nullity. If, however, the error depends upon adjudication of disputes, either of fact or law different considerations would apply. After all as the Supreme Court has observed that the question whether there was an error within the jurisdiction or an error of jurisdiction depends upon the nature of the error. In view of the express provision and public policy indicated in Section 69 of the Partnership Act in my opinion entertaining a suit in derogation of that mandatory provision would defeat the purpose of the statute and such an error would amount to an error of jurisdiction and a decree passed on such an error would be a nullity...." 20. The above ratio was followed in M/s. J.D. Singh and others v. Calcutta Port Trust (AIR 1994 Cal 148). The High Court of Bombay in Govindmal Gian Chand v. Kunj Biharilal and others, AIR 1954 Bom. 364, has held : "... the provisions of Section 69, Partnership Act are in themselves, in my opinion, sufficient for the purpose of deciding that once the Court has found that the plaintiffs1 firm is an unregistered firm, as the plaintiffs have no right in law to institute a suit as a firm, the Court can pass no order in the suit as such except of course an order of dismissal. No act of the defendant can make a suit good which is at its inception bad and therefore, no question of the defendant waiving any right arises in such a case." In view of the fact that the firm was unregistered, the Court declined to pass a decree even in terms of the consent between the parties. In Nokhu and ethers v. Gokal and another (AIR 1957 HP 59) also it has been held that the fact that in the written statement the defendants did not raise the plea of the bar of Section 69 of the Act would not relieve the Court of the duty of looking into the matter and deciding it. In Nokhu and ethers v. Gokal and another (AIR 1957 HP 59) also it has been held that the fact that in the written statement the defendants did not raise the plea of the bar of Section 69 of the Act would not relieve the Court of the duty of looking into the matter and deciding it. The objection as to the bar under Section 69 of the Act being a legal one and going to the very root as to the jurisdiction of the Court to entertain the suit, therefore, can be raised at any stage and the Court would not be relieved of the duty of looking into it and deciding the same. In the present case, the suit having been filed by the partners of an unregistered firm, therefore, is hit by Section 69 of the Act. This second contention raised on behalf of the plaintiffs is also rejected. 21. In view of the legal position that the present suit is hit by the bar under Section 69 (2) of the Act, there is no option but to dismiss the suit. In that view of the matter, it would be wholly unnecessary for this Court to go into the merits of the case and to record issue-wise findings. Even if it may be assumed that the suit of the plaintiffs is well founded, this Court is bound to dismissed the suit on account of the bar placed under Section 69 of the Act. 22. As a result, the suit of the plaintiffs is dismissed. However, on the facts and in the circumstances of the case, it is ordered that the parties shall bear their own costs.