Defendant has cost his right by not raising plea of non-registration.

1. The defendant in O.S.No.111 of 1982 on the file of the Principal Subordinate Judge, Pondicherry, is the appellant in the second appeal.

2. Thesuit was filed by the respondent herein represented by its partner for recovery of Rs.6,419.96 being the balance amount due by the defendant/appellant towards credit purchase of cloth, subsequent interest and costs. The case of the plaintiff was that the defendant purchased textile goods between 7.5.1981 and 21.8.1981 for a total value of Rs. 18,208.96 on credit, that they were credit sales and it was agreed between the parties that the defendant had to pay interest at 18% per annum if the credit bill was not discharged within 30 days from the date of purchase, that the defendant had paid Rs. 11,789 on various dates towards the purchases, but, failed to pay the balance amount of Rs.6,419.96 after 8.12.1981, that a lawyer's notice was issued and the suit came to be filed.

3. The defendant filed a written statement contending inter alia that his father was the sole proprietor of the defendant/firm, that his father died in April 1981 leaving him at a very young age, his mother and six other members in the family, that the defendant used to purchase textile goods on cash as well as on credit, that the business dealings with the plaintiff commenced from 16.5.1981 after payment of cheque for Rs.500 and the first consignment was not taken delivery because the plaintiff refused to handover the goods unless the defendant paid half of the sale consideration in advance, that after reaching an understanding, the defendant purchased goods from 17.5.1981, that the plaintiff had not given credit for Rs.500 on 30.5.1981, that the plaintiff had fabricated the suit claim, that the defendant owed only Rs.740.95 as per the statement of accounts, that the suit was bad for non-joinder of necessary parties as the defendant was not a proprietor, and that the suit was liable to be dismissed.

4. On the above pleadings, the following issues were framed:

1. To what amount the plaintiff is entitled?

2. Is the suit bad for non-joinder of other necessary parties?

3. To what relief are the parties entitled to?

5. The plaintiff’s representative was examined and Exs.A.l to A.7 were marked on the plaintiff's side. The defendant's representative was examined and Exs.B.l to B.3 were marked. On the oral and the documentary evidence, the trial Court found that the plaintiff was entitled to recover Rs.5,919.96 with interest at 6% per annum from the date of filing of the suit till realisation. The defendant was granted three months time to pay the amount.

6. In the course of the trial, a contention was raised on behalf of the defendant that the plaintiff’s firm was not competent to file the suit because it was not a registered one. This contention was discountenanced by the trial Court observing that since the party representing the trading firm had filed the suit only for the purpose of collecting outstandings and, for settling partner's account inter se, that the partner, who actually dealt with the defendant firm, was competent to file the suit in full c apacity and the question of registration of firm need not be considered in the suit, as the defendant had not raised any specific plea in the written statement about the non-registration of the firm.

7. The defendant filed appeal in A.S.No.104 OF 1984 before the I Additional District Court, Pondicherry. The learned District Judge confirmed the decision of the trial Court and dismissed the appeal. Even before the lower appellate Court, the non-registration of the plaintiff’s firm was put forward as an objection to the maintainability of the suit by the defendant. The learned Additional District Judge held that this plea not having been raised in the written statement, it did not arise for consideration in the appeal.

8. At the time of admission the following substantial question of law was framed for decision in the second appeal:

Whether the suit filed by