1983 PLP 3056 (CLC)

3. The only point on which the learned counsel for the parties addressed the Court at the hearing of this petition centred round the question of the non‑maintainability or otherwise of the suit, on the ground of limitation. In order to determine the above question, it would be relevant here to mention that the plaintiff/petitioner earlier had filed Suit No. 259 of 1965 against the respondent No. 2 Mubarak. who was the partner with him under the partnership deed dated 12th September, 1963 (Exh. P/1). It may also be noted here that this is the same partnership which is also the basis of the present suit out of which this petition has arisen. In the said earlier suit, the plaint of which is produced as Exh. 16, the petitioner, after narrating the formation of the above‑mentioned partnership (Exh. Pi I) between him and Mubarak, and its registration with the Registrar (Exh. P/2) on 26th September, 1963, pleaded that the said firm was die. solved by mutual consent on 9th May, 1965. It would be relevant to reproduce herein para. 10 of the said plaint "That this partnership continued upto 9th May, 1964 and that, the partnership was dissolved mutually between the parties and de fendant took over completely the Cinema with all its belongings and agreed to pay to the plaintiff a sum of Rs. 24,519.72 within a period of one year." Placing reliance on the dissolution of the partnership as above, and for the reason that the above‑mentioned amount agreed to be paid pursuant to the dissolution of the firm, had not been paid in spite of de mands the petitioner claimed a decree for the said sum of Rs. 24,519.72 with costs and interest. The learned VII Civil Judge at Karachi who tried the said suit, being satisfied on the evidence produced by the peti tioner that on 9th May, 1964 the firm was dissolved by mutual consent of the parties and the respondent No. 2 took over the cinema completely and agreed to pay him the sum of Rs. 24,519.72, decreed the said suit by judgment delivered on 22nd April, 1970. The dissolution of the firm on 9th May, 1964 is also supported by the statement of the petitioner made in Insolvency Case No. 4 of 1970 wherein as a creditor. the petitioner admitted that his partnership with respondent No. 2 continued till 9th May, 1964 and thereafter it .was dis solved mutually and that a sum of Rs. 24,519.72 thus became payable to him as the balance due. Thus, on the material on record and in the light of the judgment and decree passed in the earlier Suit No. 259 of 1965, by the learned Civil' Court I find myself in agreement with the conclusion reached by the learned First Appellate Court that the partnership between the petitioner and the respondent No. 2 was dissolved on 9th May, 1964 by mutual consent. The finding of the trial to the contrary which were based on the reasoning that neither there is any deed of dissolution partnership nor any Court was moved for its dissolution and that no notice regarding dis solution of the firm was given to the Registrar of firms of the change in partners, are patently erroneous. The learned trial Court obviously fell to error due to omission on its part to note, that a firm could be dissolved by consent of all the partners as laid down in section 40 of the Partner ship Act: Mere absence of a deed of dissolution, not moving any Court for dissolution or absence of notice to the Registrar of firms for the change in the names partners, would be no bar in law to the dissolution of the firm becoming effective if otherwise the dissolution is validly made by mutual consent of the partners. The finding of the trial Court being against the law and facts on record thus cannot be sustained.

4. In view of the conclusion reached that the firm was by mutual dissolved on 9th May, 1964 the suit for rendition of account of such a dissolved partnership filed on 13th July, 1976 after the lapse o more than 3 years, was hopelessly barred by time. Reference may b made to Article 106 of the Limitation Act which provides as follows Art. 106 For an account Three years The date of the and a share of the dissolution. profits of a dis solved partner ship.

5. The upshot of the above discussion is that this petition cannot succeed. The petition was dismissed by short order passed on 14th November, 1982 the above are the reasons for the same. M. Y. H. petition dismissed.