JUDGMENT : Kalyan Rai Surana, J. Heard Mr. D. Barua, the learned counsel for the appellant as well as Mr. S Dutta, learned Senior Counsel assisted by Mr. Siddhant Dutta, the learned counsel appearing for the respondent. 2. As per the memo of appeal, the same is found to be presented under Section 98 of Civil Procedure Code (CPC for short). Obviously, this is a mistake in presentation of appeal. Therefore, for ends of justice, this appeal is treated as one under Section 96 CPC. The respondent herein is the plaintiff in T.S No. 38 of 2006. As per the plaint the defendant was M/s. Daniel Construction, a registered partnership from having office at Rajendra Complex, Premtola, Silchar, represented by its partner, Sri. Mrinal Kanti Roy. However, the present appeal has been preferred by Sri. Mrinal Kanti Roy. Although the appellant was not arrayed as one of the defendants in the suit, while filing this appeal, the appellant has not taken any leave of this Court to file the present appeal. Nonetheless, as the appeal is found to have been filed on 13.07.2000, and was admitted for hearing by order dated 27.04.2012, this court is not inclined to non-suit the appellant after about 8 years on this technical ground. Having observed that the appellant was one of the partners of the defendant No. 1 firm, the hearing of this appeal has been proceeded with. 3. In the suit it was projected by the respondent herein that one Subash Kr. Dev Roy was the owner of the land on which Shibam Apartment situated at Central Road, Silchar was constructed by the defendant firm, namely, M/s. Daniel Construction (hereinafter referred to as “defendant”). By virtue of registered Deed of Agreement No. 896 and Power of Attorney No. 86, both dated 21.07.2000, the land owner had appointed the defendant as his attorney, and gave them the authority to sell/transfer the ownership rights of the flats and shops in the said building to the intending purchasers. Accordingly, by an Agreement dated 10.02.2001, the defendant had entered into a contract with the respondent herein for sale of a shop room bearing Room No. 5, having a total area of 333 sq. feet, and described in the Schedule appended to the plaint for a sale consideration of Rs. 8,65,000/- and it was stated that the defendant had taken an advance of Rs. feet, and described in the Schedule appended to the plaint for a sale consideration of Rs. 8,65,000/- and it was stated that the defendant had taken an advance of Rs. 2,00,000/- from the respondent by issuing a separate money receipt dated 10.02.2001 It was stated that thereafter, pursuant to the said agreement, the respondent had paid a further sum of Rs. 1,00,000/- on 23.03.2001 and a further sum of Rs. 1,00,000/- on 28.04.2001 However, the defendant did not complete the proposed construction. As the appellant had expressed his inability to complete the construction because of financial crisis, the respondent paid a further sum of Rs. 4,65,000/- to the defendant on 22.12.2003, and while receiving the said last payment, the appellant, signed an Agreement dated 22.12.2003, as the partner of the defendant and that by the said writing, the defendant had acknowledged the receipt of a sum of Rs. 1,00,000/- paid on 23.03.2001 and on 28.04.2001 and the receipt of a further sum of Rs. 4,65,000/- from the respondent on 22.12.2003 and undertook to deliver the possession and to complete the sale within 6 (six) months. However, neither the sale was completed nor possession of the promised space was delivered to the respondent. Hence, the respondent had filed a suit for specific performance of the said contract with a prayer for executing the sale deed, for delivery of property, for formal injunction, cost, etc. 4. The appellant contested the suit in his own name and took up the plea of non-maintainability of the suit under the provision of the Partnership Act because it was not registered with the Registrar of Firms and could not be legally sued and it was also stated that the suit was not maintainable under Specific Relief Act, further stating that all the partners of the firm were necessary parties without impleading them, for which the suit was bad for non-joinder of necessary parties. The appellant denied receipt of Rs. 4,65,000/-, and it was further stated that the respondent had failed to pay the balance consideration of Rs. 6,65,000/-. The appellant further took up a plea that the respondent had agreed to finance the partners for the defendant's business and against the loan taken, dividends were paid to the respondent. The appellant denied receipt of Rs. 4,65,000/-, and it was further stated that the respondent had failed to pay the balance consideration of Rs. 6,65,000/-. The appellant further took up a plea that the respondent had agreed to finance the partners for the defendant's business and against the loan taken, dividends were paid to the respondent. It was also stated that the alleged Agreement dated 27.12.2003 was neither executed by the appellant nor had he received any money mentioned therein and that the said agreement was an anti-dated one, created falsely for the suit. It was further stated that the appellant used to give signed blank stamp papers to the respondent on good faith while taking loan and therefore, the Agreement dated 22.12.2003 was prepared on one such paper. However, the appellant had stated that upon perusal of the original document, he can ascertain whether the said agreement was one of such stamp paper. Accordingly, the appellant had prayed for dismissal of the suit. 5. As per the records, the written statement was filed after the time stipulated under Order VIII Rule 1 CPC, and, as such, the said written statement of the appellant was accepted by the learned trial court by order dated 25.06.2007. Hence, no issues were framed for trial. The appellant was not permitted to adduce any evidence vide order dated 28.08.2008. 6. The respondent examined himself as PW-1 and he had exhibited the Agreement dated 10.02.2001 (Ext.1), Money receipt of Rs. 2,00,000/- dated 10.02.2001 [Ext.1(i)], Deed of Agreement dated 22.12.2003 (Ext.2). 7. For the purpose of deciding the suit, the learned Trial Court had framed one issue i.e. Whether the plaintiff is entitled to a decree as prayed for? 8. The learned Trial Court by discussing the provisions of section 25 and section 69 of the Partnership Act, 1932 had held that there was no bar for filing a suit and it was further held that all the partners of the firm are liable jointly for the acts of the firm. The learned Trial Court further held that the respondent herein had been able to prove the Agreement dated 10.02.2001 (Ext.1) was in respect of purchasing the shop room No. 5, having an area of 333 sq. feet and it was held that the vide Ext.1(i) and Ext.2, the respondent herein had proved that the payment of full consideration of Rs. The learned Trial Court further held that the respondent herein had been able to prove the Agreement dated 10.02.2001 (Ext.1) was in respect of purchasing the shop room No. 5, having an area of 333 sq. feet and it was held that the vide Ext.1(i) and Ext.2, the respondent herein had proved that the payment of full consideration of Rs. 8,65,000/- was made to the defendant. The learned Trial Court had further held that from the contents of Ext.1 it was duly established that the appellant herein was the constituted attorney on the promoter firm. As a result, the issue No. 1 was decided in favor of the respondent No. 1 and the suit was decreed with cost by declaring that the defendant firm shall execute and register a sale deed in respect of suit premised in respect of respondent herein and deliver possession thereof within a period of 1 (one) month from the date of passing a decree, failing which the sale deed would be executed and registered according to the provisions of Order XXI Rule 34 (5) and 6(a) CPC. A decree for permanent injunction was also granted to restrain the defendant from alienating/transferring the suit property to any other party. 9. Heard the submissions advanced by the learned counsel for the appellant as well as the learned Senior Counsel for the respondent. The learned counsel for the appellant has strenuously argued on the basis of the issues raised by the appellant before the learned Trial Court by filing his written statement, notwithstanding that the said written statement was not accepted by order dated 25.06.2007, as indicated herein before. Hence, the only point of determination, which arises in the present appeal is that Whether the impugned judgment and decree is sustainable on facts and in law? 10. The first point raised by the learned counsel for the appellant was that the suit was bad for non-joinder of the other partners of the defendant firm. The said point was denied by the learned Senior Counsel for the respondent. This issue appears to be well settled by this Court in the case of State of Tripura v. Bhowmik and Company, AIR 2004 Gau 19 : (2004) 1 GLR 489. The said point was denied by the learned Senior Counsel for the respondent. This issue appears to be well settled by this Court in the case of State of Tripura v. Bhowmik and Company, AIR 2004 Gau 19 : (2004) 1 GLR 489. In the said case, this Court had held that the partners can be sued in the name of firm and when so sued, the firm includes and represents its partners and therefore, it was held that that the question of non-joinder of a partner by his name does not arise when the suit is against the firm. Therefore, the issue raised by the learned counsel for the appellant is not sustainable, because as the present suit is found to have been filed against the defendant, which is a partnership firm, the suit cannot be held to be bad for non-joinder of its partners. Moreover, the learned Trial Court appears to have rightly held, by referring to section 25 of the Partnership Act that every partner is jointly and separately liable for facts of the firm while he is a partner. Moreover, the provisions of Order XXX Rule 1 CPC, permits the partners to be sued in the name of the firm. Hence, this Court finds that the suit was not bad for non-joinder of any partners as the co-defendants in the suit. 11. The other point which has been taken up by the learned counsel for the appellant was that the respondent had given loan to the partners for doing business of the defendant firm and that in course of such monetary transactions, the appellant had signed blank stamp papers upon which the agreement dated 22.12.2003 (Ext.2) was prepared. The said stand was denied by the learned Senior Counsel for the respondent. He had submitted that the appellant having failed to prove his stand, the said ground was not sustainable on facts and in law. In this regard, on a perusal of the Agreement dated 10.02.2001 (Ext.1) and the Agreement dated 22.12.2003 (Ext.2), it is seen that by the Agreement dated 10.02.2001 (Ext.1), the defendant had agreed for the sale of the premises described in Schedule-1 of the said Agreement to the respondent at a sale consideration of Rs. 8,65,000/-, but it is a way of a separate money receipt dated 10.02.2001 (Ext.1(i)] that a sum of Rs. 8,65,000/-, but it is a way of a separate money receipt dated 10.02.2001 (Ext.1(i)] that a sum of Rs. 2,00,000/- was paid to the defendant, which was acknowledged by issuing a money receipt for a sum of Rs. 2,00,000/-. 12. However, the Deed of Agreement dated 12.07.2000 (Ext.2) appears to be highly questionable. Firstly, although the said document is said to be a Deed of Agreement, it is unilaterally signed only by the appellant herein and there is no signature of the respondent. In the absence of signature by the respondent, the said document cannot be said to be an agreement. Secondly, the stamp paper is found to have been purchased/issued on 11.07.2000, as per the endorsement made in its back page. In the front page of Ext.2, there are 2 (two) signatures of the appellant, and both signatures contain the dated of 12.07.2000 Therefore, when the principal Agreement (Ext.1) was executed on 10.02.2001, there is no way to believe that the appellant would have acknowledged on 12.07.2000, the receipt of part payment of Rs. 1,00,000/- on 23.03.2001, Rs. 1,00,000 on 24.08.2001 and Rs. 4,65,000/- on 22.12.2003, because as stated herein before, the said document contains the date of signature as 12.07.2000 Thirdly, the date of Agreement (Ext.2) is sown to be typed as 22nd day of December 2003. On the face of the said document, it appears to be a manipulated document because immediately below the signature of the appellant on Ext.2, bears the date of 12.07.2000 It is unbelievable that when an agreement is purported to have been made on 22.12.2003, it would be signed by the respondent by giving a date of 12.07.2000 and that the respondent would accept such an valuable document showing a receipt of Rs. 6,65,000/- from him with a signature of the appellant dated 12.07.2000 Therefore, for the above discussions on the 3 (three) aforesaid reasons, the explanation given by the learned counsel for the appellant, seems to be a plausible and probable explanation. 13. It is seen that notwithstanding the previous orders passed by the learned trial Court on 25.01.2007, the learned Trial Court has recorded in the order sheet that the learned lawyer for the defendant vide petition No. 176/2 again prayed for time for filing of written statement and the said prayer was allowed, provided that the written statement was made within stipulated time. The next date of the suit was fixed on 02.03.2007 for written statement and within a bracket, it was mentioned that the “written statement be made within time”. However, sufficiently before the next date fixed, on 17.02.2007, the appellant herein had submitted his written statement. On the next date fixed i.e. on 02.03.2007, the learned trial Court has recorded in the order sheet that the written statement was filed on 17.02.2007 which was put up today (i.e. 02.03.2007). Therefore, when the learned trial Court had fixed the next date for filing of written statement on 02.03.2007, directing that the written statement to be filed on time, and the said written statement, which was filed before time on 17.02.2007, could not have been rejected so as to proceed ex-parte against the appellant. Therefore, this Court is of the view that the order dated 25.06.2007, by which the written statement filed by the appellant was rejected is not sustainable either on facts or in law. 14. Therefore, having disbelieved the contents of the purported Agreement dated 22.12.2003 (Ext.2), this Court finds that the appellant herein appears to have a prima-facie case for defending the suit and the resultant decree. In the grounds of appeal, the ex-parte proceeding against the appellant is one of the grounds of challenge. Hence, by invoking the provision of Order XLI Rule 33 as well as section 105 CPC, this Court is inclined to set aside the order dated 25.06.2007, passed by the learned Trial Court for not accepting the written statement of the appellant, as well as the order dated 28.08.2008 for not allowing the appellant to adduce evidence. 15. Resultantly, the ex-parte judgment and decree dated 18.03.2009, passed by the learned Civil Judge No. 1, Cachar, Silchar in T.S 38/06 is hereby set aside. Consequently, the suit is remanded back to the said learned Court for a fresh trial by directing the learned trial Court to accept the written statement filed by the appellant on 17.02.2007 As a result, it would be open to both sides to adduce fresh evidence to prove their respective style. This order of remand is within the meaning of Order XLI Rule 23A CPC. 16. Accordingly, this appeal stands allowed by order in remand of the suit for fresh trial as indicated above. 17. There shall be no order as to cost all throughout. 18. This order of remand is within the meaning of Order XLI Rule 23A CPC. 16. Accordingly, this appeal stands allowed by order in remand of the suit for fresh trial as indicated above. 17. There shall be no order as to cost all throughout. 18. Both the parties, who are duly represented by their learned counsels, shall appear before the Court of learned Civil Judge, Cachar, Silchar on 14.05.2018 without any notice for appearance, and by producing a certified copy of this order shall seek further instructions from the said learned Court. 19. Let the LCR be returned back.