1. In the suit out of which this appeal has arisen, the plaintiff sued the defendant to recover arrears of rent cesses and damages amounting to Rs. 148-14-3 at the rate of Rs 33 as the annual jama due for Kartick 1323 to 1326 Chaitra. The case of the defendant was that the suit was bad for non-joinder of parties, because certain persons. Kalipada Bepin Behari and Benode Behari Singha were not joined as parties to the suit. There was a further plea that as the plaintiff had let out 3 bighas out of the entire land to a third party the defendant was entitled to get suspension of all payment of rent.
2. The Court of first instance dismissed the suit on the ground that it was bad for non joinder of parties and this view was up held on appeal by the learned Subordinate Judge.
3. In appeal to this Court it has been argued, that it was not open to the defendant to take this plea of non-joinder. In a former suit for rent between the, parties the defendant took the same plea and the point was decided against him and the plaintiff obtained a decree for the 16 annas of the rent. No doubt the learned Subordinate Judge overruled this objection of the plaintiff on the ground that in the previous suit the plea of non-joinder was not allowed to be raised as the same was taken at a late stage. That, no doubt, was correct. But the plea of non-joinder was one which the defendant could and should have raised in the former suit; and a point which a party could and should nave raised in a former suit if it is not raised by the party is held to have been decided against nun. In the present case the defendant raised this plea at a late stage and therefore, was not allowed to contest. That being so, it must be considered to be equivalent as having been decided against him because it was a point which could and should have been raised. That being so it is not open to the defendant now to raise this plea of non-joinder.
4. The appeal, therefore, succeeds and the case must be sent back to the lower Appellate Court to decide the remaining issues. The appellant is entitled to his costs of this appeal. The other costs will abide the result.