Registration of a partnership firm under S. 69 of the Indian Partnership Act, 1932, is a condition precedent to the maintainability of a suit by the firm, but the defence of non-registration must be pleaded in the written statement and cannot be raised at a later stage.

JUDGMENT :- 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 Seha, 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 Jethmal which is stated to be a joint family trading firm. The defendant No. 1 Ganga Sana 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 Firm.

The defendant Ganga Saha is the Karta of the 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 defendants 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 tally with the same.

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 S. 69 of She Indian Partnership Act.

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,

3. 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 S. 69 of the Indian Partnership Act. It appears that no point was taken by the defendants under S. 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 S. 69 of the Partnership Act and dismissed the suit as aforesaid.

4. 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 S. 69 of the Partnership Act at such a late stage. If the defendants had taken this plea in the written statemen