1988 PLP 461 (CLC)

‑‑‑5. 69‑‑Filing of suit by unregistered firm‑‑Effect‑‑Partners of unregistered firm, held, could not file suit under a contract in their own name as such suit would be barred under S.

69. Ibrahim Pishori for Petitioners. Date of hearing: 19th February, 1987 The respondents had filed a suit for recovery of Rs.3,620 before the Small Causes Court. The brief facts are that Ehsan Weaving Factory imported 67 cartons of yarn on board Strathfiee. The goods" were loaded and carried under bill of lading No. BKA‑25 with specified, marks in good order and condition. The applicant No.l are the carriers" whereas the applicants No.2 are their local agents at Karachi. On discharge it was found that two cartons were missing. The consignees appointed the respondents as their clearing agent and endorsed the bill of lading in their favour. On claim being filed by the respondents, the applicants took the plea that two cartons were discharged under nil marks and their delivery was offered which was not accepted b the respondents. The respondents therefore filed the suit in their name. The respondents Muhammad Iqbal and Muhammad Hanif have described themselves as "carrying on business in the name of Muhammad Iqbal and Company". In the written statement the applicants raised the plea that the suit is barred under section 69 of the Partnership! Act. It was further pleaded that the respondents have no right to‑' file the suit in their name. On merit they reiterated their plea of offering two carton under nil marks, The learned Judge, Small Cause j'' Court framed only two issues namely, (1) whether the plaintiff is''' entitled to recover Rs.3,620 and (2) what should the decree be. He gave his finding in the affirmative and decreed the suit. The revision application was originally listed before my learned brother Saeeduzzaman Siddiqui, J. but one day before the date of hearing it was transferred to me and a cause list was accordingly issued. Considering this situation I ‑ waited for the respondent for quite sometime. The respondents were called outside my Court as; well as the Court of my learned brother Saeeduzzaman Siddiqui, J. but they remained absent. Mr. Pishori, learned counsel for the petitioner, has contended that the learned trial Court should have framed issue on the plea' that the suit is barred under section 69 of the Partnership Act. None of the legal issue raised in the written statement were framed or considered by the learned Small Causes Court. The respondents had examined their witness Muhammad Hanif who admitted in cross‑examination that he is partner of M/s. Muhammad Iqbal & Co. which is registered with the Income‑tax Department. No certificate of registration was produced to establish that the firm is registered with the Registrar of Firms under the Partnership Act. It is thus clear that M/s. Muhammad Iqbal & Co. is a partnership firm and not a proprietary concern. The partners of an unregistered firm cannot file a suit under a contract in their own name. The suit was therefore barred by section 69 of the Partnership Act. In spite of this legal position Mr. Pishori states that the applicants are prepared to pay Rs.1,000 to the respondents without admission of the liability and ex gratia. I bind down the petitioners to the statement made by the learned counsel. They should deposit Rs.1,000 in Court within two weeks. Subject to this observation the Revision Application is allowed and ‑the impugned judgment and decree is set aside with no order to costs. H . B . T . /0‑4/ K Order accordingly