1. In this second appeal the plaintiffs are the appellants from a reversing decision of the learned District Judge, Mayurbhanj at Baripada, whereby he reversed the decision of the learned Subordinate Judge, Mayurbhanj, and dismissed the plaintiffs' suit for Rs. 2180/- on account of a loan taken by defendant No. 1 Ganga Saha, the principal amount being Rs. 2000/- and the balance as interest at the rate of 12 per cent per annum.

2. The facts shortly stated are these: The plaintiffs have got business in cloth at Baripada under the name and style ‘Krushna Gopal Jethma’ which is stated to be a joint family trading firm. The defendant No. 1 Ganga Saha is the father of defendant No. 2, Balabhadra Shaha and both of them live in joint mess and property and the family business is conducted by the defendants under the name and style ‘Ganga Saha Balabhadra Finn’.

3. The defendant Ganga Saha is the Karta of the I family and the manager of the business. On May 5, 1951 the plaintiff No. 2 advanced a loan of Rs. 2000/- to the defendant Ganga Saha who gave the cheque for the said amount of Rs. 2000/- on Mayurbhanj State Bank, Baripada on the understanding that the money will be drawn on May, 7, 1951 but the cheque was dishonoured on the ground that the defendant's bank account had already been closed. The plaintiffs through their lawyer gave registered notice demanding payment of the dues with interest. Upon the failure of the defendants to pay the plaintiffs' dues in spite of demands, the plaintiffs filed the suit on February 2, 1952. It was not until about eight months whereafter that written statement was filed on behalf of the defendants with the defence that the cheque was a forged cheque as the account was closed long ago and the unused cheques were returned to the Bank; that the plaintiff got hold of one of the unused cheques and manufactured the cheque in suit by forging the signature of the drawer. The Cheque Ex. 3 was examined by a handwriting expert in course of the hearing of the suit and compared with the specimen signature of the drawer and was found to billy with the same.

4. On evidence, the trial Court decreed the suit in favour of the plaintiffs. In appeal, the learned lower appellate Court found that the cheque was genuine and Rs. 2000/- was also paid by the plaintiff to the defendant. But the lower appellate Court found that the plaintiff being an unregistered partnership firm at the time of the institution of the suit, the suit was not maintainable by reason of Section 69 of the Indian Partnership Act.

5. The learned lower appellate Court also found that assuming that it was not a partnership but a joint family firm, the two brothers of plaintiff No. 2 not having been joined as a party to the Suit, the suit was not maintainable. Accordingly whether the plaintiffs constituted a partnership or a joint family firm — in either view of the constitution of their concern, the Suit was not maintainable and accordingly he dismissed the suit. Hence this second appeal.

6. The main point for consideration in this second appeal is whether the learned lower appellate Court was right in dismissing the suit on the ground of non-maintainability under Section 69 of the Indian Partnership Act. It appears that no point was taken by the defendants under Section 69 of the Indian Partnership Act in their written statement. It appears that the defendants sought to raise the point under S. 69 before the trial Court. In 1955. The trial Court however did not allow the point to be raised as it was not taken in the written statement. The learned lower appellate Court who decided this case in May 1958 however accepted the defence plea under Section 69 of the Partnership Act and dismissed the suit as aforesaid.

7. Mr. L.K Das Gupta, learned counsel for the plaintiffs, contended that the plaintiffs are prejudiced by reason of the defendants taking the point of registration under Section 69 of the Partnership Act at such a late stage. If the defendants had taken this plea in the written statement, then it was open to the plaintiffs to withdraw the suit and file a fresh suit which would have been within time. If the plea was taken initially in the written statement, no question of limitation would have arisen.

8. Apparently, the defence plea under S. 69 was taken after statutory period of limitation had expired. Much of the discussion on the merits of the defence under S. 69 for alleged non-registration of the partnership will be only academic, it view of the initial position that this point was not taken in the written statement. In my opinion, it will be unnecessary to consider the question whether Section 69 of the Partnership Act is applicable to the facts of the present case because even if it is assumed for the purpose of argument, that S. 69 is applicable it was not open to the plaintiffs as appellants before the lower appellate Court to urge that the suit was bad on the ground fiat the firm was not registered.

9. This defence was not pleaded in the written statement. It is a mixed question of facts and law and it cannot be decided without a finding of fact whether the firm was or was not actually registered under the Partnership Act, at the time of the institution of the suit. Under these circumstances I think that this point cannot now be raised in second appeal. This view is supported by a Division Bench decision of the Patna High Court in Mahammad Ali v. Kondho Rayaguru, AIR 1945 Pat 286, where it was held that since it is the defendant who intends to contest the performance of the condition precedent, namely, the registration of the Firm and if the point is not raised in the pleadings, the question is not at all before the Court. The Privy Council also in a similar context held that where a claim has never been made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward (Siddik Mohammad Sah v. Mt. Saran, AIR 1930 PC 57 (1)).

10. That apart, even on the merits of the defence under Section 69 of the Partnership Act, in the present case, the learned lower appellate Court appears to have proceeded under certain wrong assumptions of fact amounting to error of record. 16 is settled law that the necessity of registration of the firm under S. 69 comes only at the time of institution of the suit and not at the time of the transaction. In the present case, no question was put to any of the witnesses whether the partner — ship was registered at the time of the filing of the suit.

11. The crucial date is the date of the suit; for if at the time the plaint was filed it was not registered, then the claim is bound to fail by reason of non-registration; subsequent registration cannot improve the position. In other words, it was a condition precedent to the maintainability of the suit on evidence, however, there is nothing to show that the firm was not registered at the time of the filing of the suit. The learned lower appellate Court, however, committed an error of record while observing in the judgment:

“Admittedly, by the date of the suit, the firm Krushna Gopal Jethmal, had not been registered. The registration of the firm is a condition precedent to its right to institute a suit of the nature mentioned in S. 69(2) of the Act. It might be that the firm was registered subsequently.

The second plaintiff as P.W 4 has clearly admitted that on the date of the suit, the film had not been registered. The defendant is entitled to rely on that admission that the firm was not registered on the date of the suit.”

There is nothing in the evidence of the second plaintiff (P.W 4) or in the evidence of the other witnesses, which shows such alleged admission by the plaintiffs that on the date of the suit, the firm had not been registered. These errors of record are, by themselves, sufficient grounds which vitiated his judgment. On the other aspect of the argument under S. 69 on the basis that it was a dissolved partnership, there is no basis for all these assumptions on which the learned lower appellate Court based his findings.

12. The position in law, however, appears to be that the dissolved partnership firm can bring an action against a third party for recovery of the property belonging to the firm even though the firm was not registered. All the arguments made in the context of assumed dissolution or subsisting partnership are based on mere inference and conjectures not warranted by evidence. I do not propose to deal with that particular aspect of the question, which is unnecessary, in view of the clear position on the facts and circumstances of the present case, that there is nothing to show on evidence that the firm had not been registered on the date of the filing of the suit.

13. Mr. R.N Sinha, learned counsel for the defendants respondents, contended that registration of the Firm being a condition precedent to the plaintiffs' right to file the suit, it must accordingly be specifically pleaded in the plaint. He relied on O. 6, R. 6 of the CPC, which provides that any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be and subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.

14. In support of his contention the learned counsel relied on a decision of the Calcutta High Court in the context of Section 54 of the Bengal Cess Act (Bengal Act 9 of 1880) under which notice under the section is a condition precedent to pay cess; in order that a zamindar or a superior landlord may be entitled to obtain decree for causes as against a tenure holder or against a Nishkardar, he must establish that there had been a notice under Section 54 of the Cess Act; hence that notice is really a condition precedent to the tenure-holder's or Nishkardar's liability or rather the foundation of his liability; where a defendant fails to raise the plea of want of notice in his pleadings but raises it at the time of argument, the plaintiff is not relieved from proving the services of notice which is the foundation of the defendant's liability as the service of notice cannot be implied under O. 6, R. 6 of the CPC when there is no such allegation in the plaint (Bir Bikram Kishore v. Munshi Tafazzal Hussain, AIR 1933 Cal 632).

15. This case, however, has no application in the facts and circumstances of the present case, where registration as required under Section 69 of the Partnership Act merely refers to the enforcibility of the right, which the plaintiff has already got on the cause of action to recover the amount of loan from the defendants; such registration, as required under S. 69, does not refer to the foundation of the plaintiffs' right, as in the Calcutta case cited above.

16. The bundle of facts constituting the cause of action is the foundation of the right; and registration is not part of such cause of action. Enforcibility of the right relates to procedure; viewed from this aspect S. 69 is only a procedural bar to the plaintiffs' taking recourse to a suit as a remedy and therefore Section 69 does not affect the substantive right of the plaintiffs on their cause of Action. In the Calcutta case cited above, notice under Section 54 of the Bengal Cess Act is the foundation of the liability of the tenure holder or Nishkardar by whom any cases are payable in respect of the lands held by them.

17. Mr. L.K Das Gupta contended that the law implies that such condition precedent has been performed. In any event, as I have already discussed above, it is not open to the defendants raising this plea at this stage as O. 8, R. 2 of the CPC provides that the defendant must raise, by his pleading, all matters which show the suit not to be maintainable and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation etc., or facts showing illegality.

18. As regards the finding of the learned lower Court that if it was a joint family concern, yet the claim must be defeated because the persons interested in the suit claims have not all been impleaded as parties in the suit. There again, the learned lower appellate Court apparently proceeded on certain wrong assumptions not warranted by evidence. The learned lower appellate Court overlooked the position in law that, in any event, a party from the Karta and the other members of the joint family, the person who actually entered into the transaction can also bring the suit.

19. In the present case, the evidence is that one of the plaintiffs had advanced the loan to the defendants. It was within his right to institute the suit for recovery of the loan advanced by him. As to the genuineness of the transaction, both the Courts below gave a concurrent finding that the money had been advanced by one of the plaintiffs to the defendants. Thus, the learned lower appellate Court was wrong in his conclusion on this point as well.

20. Further, there is no evidence to show that the plaintiff who had advanced the money is a junior member of the family and not the Karta. In any event, it also appears, from the pleadings of the defendants in their written statement, that no point was taken as to the suit not being maintainable by reason of non-joinder of parties. Speaking generally it seems to me that the defences subsequently taken on behalf of the defendants, were the result of after-thought; and, they are not, accordingly, at all convincing.

21. In this view of the matter, the decision of the learned lower appellate Court is contrary to law and is, therefore, set aside. The suit is decreed in favour of the plaintiffs.

22. This appeal is, accordingly, allowed with costs throughout.

AE/R.G.D

23. Appeal allowed.