P L D 1966 (W (PLP)

(2) Is suit against defendant No. 3 barred by limitation? (3) Did plaintiff in all pay Rs. 57,068‑11‑3 on behalf of defendant No. 2 to Rokaria Brothers? If so, was it paid on promise of defendant No. 2 that plaintiff would be taken as a partners? (4) Whether defendant No. 2 was the sole licensee and as such had no authority to admit plaintiff in partnership with him? (5) Did defendant No. 2 put off execution of deed, of partnership ? (6) Did plaintiff pay amounts by cheques drawn by him to defendant No. 1 under the licence? Its effect? (7) Was plaintiff's overall investment in the business Rs. 87,755 till 1‑12‑1957 ? (8) Is the Deed of Partnership void for want of consideration and/or on account of fraud practices by plaintiff on defendant No. 2? (9) Did defendants or which of them conspire against plaintiff? (10) Was licence of Shaherah Service Station cancelled by defendant No. 1 in conspiracy? If so, with which other defendant or defendants? (11) Was the action in conspiracy done by defendants or any of them to injure the plaintiff's interest? (12) Are defendants or any of them liable for damages to the plaintiff? (13) What damages, if any, can plaintiff claim? If, so, against what defendants? (14) What relief? My findings and reasons are as follows:

6. Issue No. 1.

Mr. Naimuddin, Advocate on behalf of defendants 1 and 3 had urged before me that suit was not maintainable and was barred under the provisions of Order 11, rule 2, C. P. C., because the cause of action in both the suits is same and hence this suit could not lie. I may repeat here again that the plaintiff has filed a suit (No. 1727/58) in Civil Court, Karachi for accounts of a dissolved partnership (vide Exh. 13). According to him, cause of action in both the suits is the same. In the present suit, allegations have been made by the plaintiff that goodwill has been destroyed, licence has been cancelled and possession taken over of everything at the petrol service station as a result of conspiracy. Relief in Suit No. 1727/58 is referred to in paragraph 23 of its plaint Exh.

13. For this purpose he had referred me to several paragraphs of the two plaints in both the suits, and had argued that same statements of facts have been pleaded and as this relief has not been claimed by the plaintiff in his previously instituted suit it was not open to him to claim to this relief in the present suit. He had relied upon several Indian authorities in support of his views. Provision of Order II. rule 2 are very clear. It lays down that every suit must include the whole of the claim to which the plaintiff is entitled in respect of the same cause of action. Thus the question of applicability of Order II, rule 2 will arise only when the cause of action in both the suits is the same. One of the tests to consider whether there was identity of cause of action in the suits is whether the same evidence can be led in proof of the claim. If the evidence to support the two claims is different then the cause of actions would be different. In the previously instituted suit plaintiff has prayed for accounts of a dissolved firm. In order to succeed in that suit plaintiff has to lead evidence that the firm has been dissolved, the amount is invested by him and accounts have not been settled. In the present suit he has claimed a certain definite amount by way of damages as a result of conspiracy entered into by all the defendants the consequences of which was the destruction or loss of partnership business and the cancellation of licence in favour of defendant No. 2 by defendant No.

1. P L D 1955 Dacca 96 supports the plaintiff's case. It was urged on his behalf by his Advocate Mr. Moulvi that the same matter can give rise to more than one cause of action. According to him cancellation of licence in favour of defendant No. 2 by defendant No. 1 resulted into (1) dissolution of partnership (2) illegal cancellation, and (3) fresh issuance of licence in favour of defendant No. 3 as a result of conspiracy alleged in the plaint. He‑ had also relied upon cases reported in P L D 1950 Dacca 575 (sic); Said Muhammad Khan v. Alam Sher Khan (P L D 1959 Azad J & K 27), Bhimangouda v. S. I. Patil (A I R 1960 Mysore 178), Shridhar Mahadeo v. Godulal Jethamal (A I R 1940 Bom. 20) and Sheokumar Singh v. Beth an Singh (A I R 1940 Pat. 76). For all these reasons I decide this issue in favour of the plaintiff,

7. Issue No. 2.‑This issue does not arise as the objection regarding limitation was given up and not pressed on behalf of defendant No. 3.

8. Issues Nos. 9, 10, 11, 12 and 13.‑The facts of the case have been described in detail in order to appreciate all the points involved in the matter and also to arrive at the correct decision. In brief, the case of the plaintiff is that a licence was issued in favour of defendant No. 2 by defendant No. 1 and he was running the petrol pump business in the name of Sahaherah Service Station in partnership with hokaria Brothers in the year 1955, Some dispute arose between the parties as a result. Of which latter retired in March 1957. Thereafter fresh licence was issued in favour of defendant No. 2 to run this business as its exclusive proprietor. Some money was required to be paid to Rokaria Brothers and as defendant No. 2 had no money available, plaintiff made this payment to them on behalf of defendant No. 2 on the understanding that he would be taken up as partner and such promise was given to him. Drafts of partnership deed were prepared but defendant No. 2 would not agree for one reason or tile other till 1‑12‑1957 when the final draft was approved by him and it was executed between the parties. Plaintiff also contends that he made further investments and when defendant No. 2 found that he was secure he tried to misbehave And ultimately succeeded in leaving his licence cancelled by defendant No. 1 which was issued in favour of defendant No: 3 as a result of conspiracy between all the defendants. This is his case in nutshell. He has narrated all these facts in his evidence. There is no direct evidence to support him regarding the conspiracy which is denied by all the defendants in their written statements as well as in the evidence of the witnesses examined on their behalf. Onus of proof was upon the plaintiff. He has merely relied upon certain circumstances in order to prove the conspiracy. According to him the licence was cancelled by defendant No. 1 because he had at one time intended to issue the same licence in favour of Adam, then Japanwala and lastly he succeeded when this licence was issued to defendant No.

3. There appears no privity of contract between plaintiff and defendant No.

1. Licence was issued by defendant No. 1 in favour of defendant No. 2 as its sole proprietor. Under the terms and conditions of this licence, it is alleged by defendant No. 1, that defendant No. 2 could not enter into partnership with anybody. Plaintiff's case on this point is that defendant No. 1 was informed about this partnership and in fact its copy was sent to it. This is denied on behalf of defendant No.

1. There is no proof in support of plaintiff's version on this point that either defendant No. 1 was orally informed about this partnership or the copy ‑of the deed of partnership was sent to it. It was urged on behalf of the plaintiff that no objection was taken by defendant No. 1 when defendant No. 2 had entered into partnership with Rokaria Brothers. This is hardly a circumstance or argument which could be taken by the plaintiff in support of his case. If the terms of the licence are very clear, and there is no ambiguity about it, then a licensee is barred from taking anybody as partner. Case of defendant No. 1 is that defendant No. 2 was not running this petrol service station satisfactorily for various reasons mentioned in the written statement and so it took action under the terms and conditions of the licence and consequently cancelled it. When defendant No. 1 had power to cancel the licence, it is done in the ordinary course of business. There is no evidence to prove the conspiracy. After its cancellation defendant No. 2 bad filed a criminal case against some of the officers of defendant No. 1 and after its complaint was discharged he had approached this Court in revision. This factor strongly goes against the plaintiff. Even if his version is accepted it was the firm which had been affected. It was urged on behalf of the plaintiff that defendant No. 2 has been paid corrupt money by defendant No. 3 for getting his licence cancelled and having the same issued in his favour. The plaintiff has failed to prove the legal wrong. Secondly he has merely claimed a fixed amount of rupees one lac by way of damages but no details have been given by him. No evidence has been adduced to show or prove the details of damages. Even if his case is taken at its best, i.e., he had entered into partnership with defendant No. 2 to run the petrol pump in the name of Shaherah Service Station. on the basis of the licence which was issued by defendant No. 1 in favour of defendant No. 2, I find that its cancellation would not give cause of action to the plaintiff. It is the defendant No. 2 who alone has suffered, if at all, on account of this cancellation. For all these reasons I decide these issues against plaintiff:

9. Issues Nos. 3, 4, 5, 6 and 7.‑No finding on these issues is necessary in view of my finding on issues Nos. 9 to

13. Apart from this fact, the plaintiff has filed separate suit in civil Court referred to above. All these points are directly in issue in that suit which is pending in the civil Court. I have already pointed out that even if the plaintiff's case is taken at its best, i.e., there was a partnership between him and defendant No. 2 (which has been denied by the latter), the cancellation of licence by defen dant No. 1 in favour of defendant No. 2 will not give any cause of action to plaintiff to file this suit.

10. Issue No. 14.

Suit is accordingly dismissed with costs. K.B.A. Suit dismissed.