P L D 1969 Karachi 408 (PLP)

(a) Evidence‑ Interested evidence‑Witness alleged as in terested‑Deposition, however, strongly corroborated by documents on record‑Evidence relied upon. Niaz v. The State P L D 1960 S C 387 ref. (b) Civil Procedure Code (V of 1908), O. XXI, r. 50‑Decree against firm‑Execution of‑Liability of one or more partners-Partnership admitted‑Evidence, ocular and documentary, on record showing that partner disputing liability had knowledge of suit-- Application for permission to execute decree against such partner personally, in circumstances, allowed. Lal Chand v. Ghanaya Lal and another A I R 1930 Lah. 243; Jagatchandra Bhattacharya v. Gunny Hajee Ahmed A I R 1926 Cal. 271 and Natvar Lal Tribhovandas v. E. D. Sassoon & Co. Ltd. A I R 1927 Bom. 447 ref. Naimuddin for Plaintiffs. Ihsanul Haq for Defendants. Money Suit filed by the plaintiff‑decree holder (M/s. Ralli Brothers Ltd., Karachi) on 9‑2‑1962 against the defendant -Judgment‑debtor (M/s. Sheikh Muhammad Din Abdur Rahman) under Order XXXVII, rule 2, C. P. C. was decreed ex parte on 1‑10‑1962 as it had failed to furnish security in pursuance of the order dated 2‑4‑1962. Present application was filed on 15‑1‑1965, by the decree‑holder for grant of requisite permis sion under Order XXI, rule 50, C. P. C. to execute its decree against the four partners mentioned in this application personally. Mazhar Rehman did not oppose this request and he had filed no objections about his liability as a partner. Abdur Rahman filed his objections on 4‑4‑1966 but he did not dispute his liability as a partner. On 1‑11‑1965 Hafizur Rahman filed his objections disputing his liability as a partner of the defendant firm. When the matter came up for hearing on 4‑4‑66 an application was filed on his behalf for adjourn ment mainly on the ground that his counsel (Mr. Ihsanul Haq) had left Pakistan to perform. `Haj'. This request was refused by the learned Single Judge. By the same order, he granted the request made by the decree‑holder under Order XXI, rule 50, C. P. C. The matter was taken to the Appellate Court by the 3 defendants namely Mazhar Rahman, Abdur Rahman and Hafizur Rahman (L. P. A. No. 236/66). By an order dated 21‑12‑1966, the appeal filed by Mazhar Rahman and Abdur Rahman was dismissed but the case was remanded to this Court for the disposal of the objections filed by Hafizur Rahman on 1‑11‑1965 denying his liability as a partner of the defendant‑judgment‑debtor firm.

2. Both the parties have examined one witness each and produced several documents in support of their versions.

3. The only question for consideration is whether Hafizur Rahman is a partner in the firm of M/s. Shaikh Muhammad Din‑Abdur Rahman and my finding on it is in the affirmative for the following reasons:‑

4. Mr. Naimuddin, the learned counsel for the decree -holder, had conceded before me that burden of proof was upon the decree‑holder i.e., the plaintiff had to prove that Hafizur Rahman was a partner in the defendant's firm (Mr. Shaikh Muhammad Din‑Abdur Rahman). Akbar Ali Hussaini who is an employee of the decree‑holder, in his evidence on oath before me had stated that defendant No. 1 consists of four partners including Hafizur Rahman. He has produced several documents in support of his version. First document is letter of confirma tion Exh. 3/1 dated 3‑9‑

60. It is signed by all the four partners including Hafizur Rahman. Evidence of Akbar Ali is to the effect that this document was signed by Hafizur Rahman as a partner in his presence. Pronotes Exh. 3/2, 3/3 and 3/4 are also signed by the four partners of defendant No.

1. Evidence of Akbar Ali in respect of these pronotes is to the effect that Hafizur Rahman had signed these three pronotes as a partner of defendant No. 1 in his presence. Next document is memo of deposit of title‑deed Exh. 3/5 dated 2‑9‑1960. It was also signed by Hafizur Rahman as a partner in the presence of Akbar Ali. Judgment‑debtor has produced a letter Exh. 3/6 dated 6‑5‑1966. In his letter Hafizur Rehman has not denied that he was a partner' of defendant No.

1. Last document produced by him is Exh. 3/7. It is an affidavit sworn by Hafizur Rahman and filed in this Court on 4‑4‑1967. It recites that he is son of Muhammad Din who had died in 1952 leaving behind 8 persons as his heirs. He has denied to be a partner of defendant No. 1 stating that he has been in service from November 1955, till to‑day. Four certificates marked `A', `B', `C' and `D' filed along with this affidavit are in support of the stand taken by him that he was originally in service of Sutlej Cotton Mills Ltd., then in Pakistan Central Cotton Committee. Hafizur Rahman Exh. 4 in his evidence has denied that he was a partner in the firm of defendant No.

1. He has also denied to have signed any documents in presence of Akbar Ali. It is admitted by him that Mazhar Rahman, Azizur Rahman and Abdur Rahman are his brothers and further that Mst. Parveen is his wife. His evidence further shows that:‑ "I have no knowledge that if my three other brothers are partners in the defendant firm. I can recognise the signatures of my wife. A couple of years back she had offered herself to be surety in this suit. I had accompanied her to this Court on that occasion. I see one application and say that it is signed by her and I produce it Exh. 4/1. I produce one affidavit and its annexure and say that the former is signed by her (Exhs. 4/2 and 4/3). She had filed this affidavit with my knowledge. At no time I had been a partner in this firm. I produce my affidavit dated 1‑11‑65 (Exh. 4/4). I have read paragraph 5 of this affidavit and say that it is not correctly worded. What I wanted to mention in this paragraph was that I had no connection with this firm at any time." In his cross‑examination he has denied to have signed the documents Exhs. 3/1 to 3/5. His evidence further recites. "I cannot recognise the signature of my three brothers. I have no documents with regard to the dissolution of this firm. I produce the objections filed on my behalf and say that these were not prepared under my instructions (Exh. 4/5) . . . . . . . . . . I have no knowledge of decree. I have shown no anxiety at any time to settle this matter with the decree‑holder. It is not correct as suggested to me that I had seen Akbar four months back or earlier to it." The first objections filed by Hafizur Rahman are contained in Exh. 4/5 and his affidavit is Exh. 4/4. It is dated 1‑I1‑

65. His attention was drawn to paragraph 5 of his objections and I have already referred to the reply made by him in his cross‑examination. After the matter was remanded he filed additional affidavit (Exh. 3/7) dated 4‑4‑

67. Mr. Ihsanul Haq the learned counsel for judgment‑debtor had urged before me that after the death of Muhammad Din in 1952, the partnership stood dissolved under section 42 of the Partnership Act. Evidence of Akbar Ali (Exh. 3) mentions that they were shown the original partnership deed of defendant No. 1 but its copy was not supplied to them. This argument of Mr. Ihsanul Haq suggests that Hafizur Rahman was a partner of defendant No. 1 but it stood dissolved in 1952 after the death of Muhammad Din. Section 42 clearly recites that a firm is dissolved on account of the death of a partner but this is subject to contract between the partners. In this particular case neither the original partnership deed has been produced nor any evidence has been led that it was agreed between the partners that the firm stood dissolved as a result of the death of a partner. Mr. Ihsanul Haq relying upon a case reported in P L D 1960 S C 388 had urged before me that evidence of Akbar Ali should not be accepted as he is an interested person. But in this particular case this witness is strongly corroborated by the documents referred to above. Hafizur Rahman had dared to deny his signatures on these documents. Section 67/68, Evidence Act deal with proof of execution of documents. In this particular case the evidence of Akbar Ali shows that some of these documents were attested by him. According to Mr. Ihsanul Haq the existence of a partnership depends upon facts and circumstances of each case. According to him, party to deal with, described as a partner was not by itself sufficient to constitute partnership. He has placed reliance upon a case reported in P L D 1962 Kar.

602. This case has not helped Mr. Ishanul Haq as partnership is not denied. As already pointed out only question for determination is whether Hafizur Rahman is a partner of defendant No. 1. 1 have also pointed out that partnership is admitted by the judgment-debtors. Further admitted position is that suit was filed against the firm of M/s. Shaikh Muhammad Din Abdur Rahman and its four partners were not specifically joined as party in the suit. In view of this position the decree‑holder has approached this Court for grant of requisite per mission under Order XXI, rule 50, C. P. C. to execute its decree against the four partners personally. Order XXX deals with the procedure in suit instituted by or against firms while rule 50 of Order XXI deals with the mode of execution of decrees which have been obtained against firms in the firm's name. Such decree can also be executed against any one or more of the partners personally (i.e.' against their person or their personal property but before this is done some conditions have to be satisfied and a certain procedure is to be followed as prescribed by this Rule I was referred to a case reported in A I R 1930 Lah. 243, where it was held that:‑ " The provisions of Order XXI, rule 50 are intended to apply to cases wherein a decree obtained against the firm it is sought to make a person alleged to be a partner in the firm personally liable." The procedure referred to above is clearly explained in a case reported in A I R 1926 Cal.

271. It lays down that:‑ " If decree is sought to be executed against a partner, he must be served with the summon to appear and answer the application filed under Order XXI, rule 50." In a Bombay case (vide A I R 1927 Bom. 447) it was held that "Where a partner disputes his liability as a partner in a firm, issue must be raised and it must be proved by the decree‑holder that the person concerned is a partner in the judgment‑debtor firm." In this particular case I have already referred to the ocular evidence as well as the documents. Exh. 4/2 is the affidavit dated 12‑4‑1962 filed by Parveen Ahktar wife of Hafizur Rahman. She had offered herself as surety and its paragraph 1 recites that she is "The wife one of the partners and related to other partners of the defendant and am fully acquainted with the facts deposed below." Exh. A/3 is Schedule 'A' attached to this affidavit mentioning her property. Exh. 4/1 is her application mentioning her property. Her husband Hafizur Rahman Exh. 4 had admitted that she had offered herself as surety and he had then accompanied her to this Court. This fact shows that Hafizur Rahman had knowledge of this suit. She has admitted in her affidavit that she is wife of one of the partners ice., Hafizur Rahman. As a result of all these discussions I am satisfied that Hafizur Rahman is the partner of defendant B No. 1 and hold it accordingly. Application filed by the decree‑holder is therefore, granted and the requisite permis sion is accordingly granted to it to execute its decree against the four partners mentioned in its application personally. A. E./K. B. A. Permission to execute decree granted.