P L D 1998 Peshawar 40 (PLP)

This .Constitutional petition has been filed by Haji Sardar Khan, resident of District Karak against the order dated 9‑10‑1997 passed by the Registrar of Firms and Society N.‑W.F.P., Peshawar which the Revised Partnership Deed submitted by the petitioner, wherein the petitioner was included in the partnership firm, Malga Enterprises, was declared invalid and illegal and consequently, the' Registration Certificate (Form 'H'), issued on 18‑1‑1993, was withdrawn. The impugned order was passed after inquiry was conducted by the Registrar in pursuance of a show‑cause notice, dated 28‑4‑1997.

2. The learned counsel for the petitioner was heard in motion. His main contention was that the Registrar had no authority to exclude the petitioner from the partnership and has, therefore, illegally exercised jurisdiction by holding that the revised partnership had violated the provision of section 31 of the Partnership Act.

3. The original partners of Malga Enterprises, respondents Nos.2 to 5 herein, had moved the Registrar Societies for exclusion of name of the petitioner from the firm alleging that the Revised Partnership Deed submitted to the Registrar on behalf of the firm was fake. The impugned order shows that during the inquiry all the parties were called and their point of view taken into consideration. The original partners specimen signatures were taken by the Registrar and sent for forensic comparison with their purported signature on (Form 'E') filed with the Revised Partnership Deed. It was found that the signatures did not tally. Another interesting fact to be noted is the admission of the petitioner himself in his reply, dated 12‑5‑1997, to the show‑cause notice, wherein in paragraph 1 he avers as follows:‑‑ "My association with the said firm dates back to January of 1993. Mr. Salim Saifullah introduced me to Mr. Iftikhar Muhammad, then Minister for Finance, Government of N.‑W.F.P. and Mr. Ghafoor Jadoon, also the then a Provincial Minister of the Government of N.‑W.F.P. Mr. Iftikhar Muhammad and Mr. Ghafoor Jadoon asked me to sign the revised Partnership Deed. It would be important to note that I did not meet any, of the other partners who had already signed the said Deed. "

4. Now the above statement of the petitioner clearly indicates that he had never met the original partners, let alone entering into an agreement with them. Partnership, as defined in the Partnership Act 1932, "is the relationship between persons who have agreed to share the profits of a business carried on by all, or any of them acting for all". The first essential ingredient of partnership is, therefore, an agreement, which in this case even according to the petitioner, was never entered into between him and respondents Nos.2 to 5.

5. It appears that the controversy between the parties relates to the sharing of the profits from mines leased to the firm in District Karak for extracting rock salt over an area of 1477.272 acres of land and it also seems that the real beneficiaries of the lease are other than the partners of the firm as paragraph 4 of the reply dated 12‑5‑1997, of the petitioner to the show‑cause notice would show. It reads at page 33 as under:‑‑ "The share of the revenues generated from the mining lease awarded to the firm were duly handed over to Iftikhar Mohmand and Ghafoor Jadoon. However, recently a dispute regarding the finances of the Firm has arisen between me and Iftikhar Mohmand and Ghafoor Jadoon. The complaint filed by Muhammad Hassan is a result of the said dispute which is only to intimidate and harass me."

6. Anyhow the Registrar of Firms was not concerned with the manner of distribution of profits but was only asked by one of the. partners to exclude the petitioner from the Firm and to declare the revised partnership null and void. The Registrar found as a fact, on the basis of inquiry, that the Revised I Partnership Deed, presented by the petitioner for registration, contained forged signatures of the founding partners. Having concluded that the Revised Partnership Deed was not genuine the Registrar had not erred in law to recall the Registration of the Revised Partnership Deed. The question as to whether the Revised Partnership Deed was genuine or not cannot be determined in Constitutional jurisdiction for it would necessarily require recording of evidence.

7. For the above reasons we do not find that the impugned order of the Registrar warrants interference in Constitutional jurisdiction. The writ petition, has therefore, no merits and is dismissed in limine. A.A./2245/P Petition dismissed.