S.K. Chattopadhyaya, J.
1. Heard Mr. N.N. Tewari followed by Mr. B.K. Jha, learned Counsel for the appellants and Mr. R.S. Majumdar, learned Counsel for the respondent.
2. This Second Appeal is directed against the judgment and decree of the First Additional District Judge, Dhanbad passed in Title Appeal No. 80/94 by reason of which the appellants appeal has been dismissed by affirming the judgment and decree of eviction passed by the trial Court in Title (Eviction) Suit No. 126/87.
3. Learned Counsel for the appellants has contended that without adding of the partners of unregistered firm, the suit has been decreed by the trial Court ignoring the ground of non-joinder of necessary party. He also submitted that on the death of original partner of the firm, non-impleading of the existing partner vitiate the entire legal proceeding and the judgment and decree of the Courts below become non-est Last but not the least, learned Counsel contended that on the facts and circumstances, the learned Courts below could have held that the appellants defaulted in payment of rent from April. 1996 onward. In support of the argument of non-joinder of parties. Learned Counsel has relied on the decision in the case of Shiv Karon Agarwalla v. Satyanaratn Mansinka reported in : AIR1978Cal495 and in the case of Bhawarjit Chetri v. Kedarmal Banarasilal reported in AIR 1954 Assam 111.
4. The respondent-landlord filed the suit for eviction against the appellants-tenants on the ground that they are habitual defaulter and have failed to pay the rent from the month of April 1996. The relationship of landlord and tenant between the parties and the rate of rent has been admitted. However, assertion of the defendants was that the suit premises was not let out to monthly rent rather there was an agreement between the defendant No. 1 and the plaintiff that the rent would be paid in lump sum on demand by the plaintiff. Admittedly, such agreement was not field by the defendants. Further case of the defendants-appellants was that the plaintiff-landlord expressed his desire in 1986 to sell the suit premises on which defendant No. 1 offered to purchase the same and to that effect talk continued for a long time and as landlord never demanded the rent and so the defendant No. 1 also did not pay any rent. However, on 9.8.1988 through bank draft he paid Rs. 9100/- which was received by the plaintiff and since thereafter rent was being remitted by money-order. Another argument was advanced that the suit was bad for non-joinder and mis-Joinder of the parties inasmuch as the defendants have unnecessarily made a party to all the three partners namely. Surendra Kumar, Bijay Kumar and Pawan Kumar should have been made parties. On the basis of pleadings though several issues were framed by the trial Court no issue was framed in regard to non-joinder and mis-joinder of the parties.
5. From the impugned judgment of the trial Court it does not appear that at the trail stage or during course of argument any objection was raised on behalf of the defendants, tenants in respect of non-framing of any issue on the said point. The trial Court decreed the suit holding that the defendants-tenants defaulted in payment of rent and as such, liable to be evicted on that ground. The appellants impugned the judgment and decree before the first appellate Court and several points were raised before it, first of which was as to whether the suit suffers from non-joinder or mis-joinder of party. This aspect was considered by the first appellate Court, who negatived this contention as well as other contentions and dismissed the appeal.
6. Provision for suits by or against Firms and Persons carrying on business in names other than their own, have been dealt in Order XXX, Rule 10 of the Code of Civil Procedure. Rule 10 of Order XXX reads as follows:
Rule 10. Suit against person carrying on business in name other than his own.--Any person carrying on business in a name or style other than his own name or a Hindu undivided family carrying on business under any name, may be sued in such name of style as if it were a firm name and in so far as the nature of such case permits, all rules under this order shall apply.
7. This provision has been considered by this Court in the case of Rarneshwar Prasad Golwara v. Keshah Prasad Bhagat recorded in : AIR1962Pat360 , wherein it has been held as follows:
It is to be noticed that Rule 1 essentially deals with a case of partnership which cannot be constituted by a single individual; there must be two or more persons to constitute a partnership. While, on the other hand, Rule 10 is wide enough to cover within its ambit a single person carrying on a business in a name or style other than his own name, two or more persons carrying on business in a name or style other than their own name either as a group of persons or as members of a Joint Hindu family. There is nothing repugnant in the subject or context to exclude the application of the principles of law embodied in Section 13 of the General Clauses Act nor is there anything, in my opinion, to enable me to hold that the definition of the word 'person' given in Section 3(42) is not applicable to the same word used in Rule 10 of Order XXX of the Code.
8. Similarly, in the case of Gorapalli Paradeshi v. Hindustan Chains Put. Ltd. reported in : AIR1981Ori149 , it has been held that decree obtained against the firm name cannot be challenged as being a nullity in view of Order XXX, Rule 10 on the ground that the suit has been field against person carrying on business in the name other than his own name in the style of firm.
9. In the present case, suit was filed against an unregistered firm namely, M/s. G.S. Refractoriness through appellant No. 2. S.K. Sahanan. The defendant No. 1 is the firm and defendant No. 1/a is the partner of the firm. According to the plaintiff, though the defendant No. 1/a tenancy of the suit premises was given to the firm, defendant No. 1. Both the firm and its partner contested the sit. In such view of the matter, at this stage, it is futile for the appellants to argue that the suit was not maintainable for non-joinder of parties.
10. Though, in the case of Bhawarjit Chetri (supra), it has been held that in a suit against an unregistered firm it is essential that all the partners of the business firm should have been joined as party defendants and in absence of the partner a decree granted in favour of the plaintiff as against such partnership is illegal but, in my view, the facts of the said case is quite distinguishable. Moreover, as a precedent, I am bound by the decision of this Court in the case of Rameshar Prasad Golwara (supra).
11. In view of the provisions as laid down in Order I, Rule 13 CPC, plea of non-joinder of necessary party cannot be raised for the first time in second appeal and the suit cannot be dismissed for non-joinder of parties at this stage. My view finds support from the decision of this Court in the case of Jaggarnath Singh v. laxmi Singh reported in : AIR1988Pat296 .
12. As noticed above, at the time of framing of issues the defendants-tenants did not raise any objection for non-joining or framing of any issue regarding non-joinder or mis-joinder of parties and no argument was even advanced on behalf of the tenants-defendants.
13. Similarly, in the case of Aneshwar Prasad v. Mistri Lall reported in : AIR1961Pat28 , this Court has held that objection regarding non-joinder or mis-joinder of parties must be taken at the earliest opportunity, and, in all cases where issues are settled, or at before such settlement, otherwise the objection shall be deemed to have been waived. The same view has been expressed by their Lordships of the Supreme Court in the case of Sri Ram Pasricha v. Jagannath reported in : [1977]1SCR395 .
14. In the background of these authoritative pronouncement I find no merit in the first submission of Mr. Tewari. So far non-pleading of existing partners on the death of original partner is concerned, I find nowhere in the record that original partner of the firm has died and this plea was taken before the trial Court or before the High Court. Thus, this argument of Mr. Tewari has no merit and has to be rejected. So for findings of the default are concerned, it is well settled that concurrent findings on the question of default cannot be interfered with by the High Court in Second Appeal.
15. In the result, I find no merit in this appeal and the same is accordingly dismissed.