1989 PLP 88 (MLD)

(1) Is the suit time‑barred? (2) Whether the agreement of sale of stock‑in‑trade of the plaintiff dated 28‑10‑1964 and the promissory note of Rs. 30,000 by the plaintiff in favour of the defendant No. 1 were obtained by fraud and are for the reason void documents? (3) Whether there was partnership between the plaintiff and defendant No. 1 as alleged? (4) Whether the suit is liable to be dismissed in view of non‑registration of Firm under section 69 of Partnership Act? ISSUE NO. 1 Agreement of sale was executed on 28‑10‑1964 and the J.M. No. 75 of 1967 was filed on 3‑6‑1967. The suit is within time. In view of this factual position, the learned counsel for the defendants have not pressed this issue. ISSUE NO. 2 The plaintiff in his evidence stated that he was carrying on business under the name and style of Nasir & sons. He knew defendant No. 2 who dealt with claims. The defendant No. 1 entered into an agreement showing that he was the financier. This happened in February or March, 1964. The defendant No. 1 took him to the office of Mr. Haziqul Khairi, Advocate who prepared a partnership deed. The defendant No. 1 told him that this partnership deed was prepared by the aforesaid Advocate and he signed it. The defendant stated that he will provide unlimited finance and he should assign the shop and all his assets in his favour. The plaintiff submitted in his cross‑examination that if he had received any deed, he would have got it registered with the Registrar. He also admitted that he did not receive it but orally they had entered into partnership. The partnership was not acted upon. He lost everything, the shop and articles in it and therefore he did not find it necessary to get it dissolved. The plaintiff was shown copy of agreement of sale. The plaintiff admitted that it bears his signature. It was produced as Ext. 9/1. It was urged on behalf of the plaintiff that the plaintiff through fraud suffered losses valuing Rs. 30,000 and also possession of Shop No.

18. A perusal of agreement of sale (Ext. 9/3) would show that the plaintiff sold and transferred the running business of Nasir Sons, 18, Akbar Road, Karachi including spare parts of scooters, motor‑cycles etc., stocked in Shop No. 18, Akbar Road, its goodwill, furniture and fixture, electric motor and tenancy or occupancy rights in consideration of Rs. 24,

000. It is an admitted position that the plaintiff has not prayed for cancellation of agreement of sale Ext. 9/3. I am of the view that the plaintiff is not entitled to claim Rs. 30,000 without seeking cancellation of the document. It is an admitted position that there is nothing on record that the execution of agreement of sale was entered by fraud or misrepresentation. The agreement of sale Ext. 9/3 is voidable one, that is valid until it is declared as void, the question of its cancellation would not arise. I am of the view that the plaintiff is not entitled to any relief until and unless he sought a cancellation of the document Ext. 9/3. As regards the plea of fraud and misrepresentation in the execution of document Ext. 9/3, it cannot be lightly brushed aside in the absence of specific pleadings. A general allegation in the plaint that the plaintiff had reposed confidence in the defendants is much too insufficient to amount to which the Court can take note of. A party cannot be allowed to travel beyond by what pleaded by him and put in issue. In the light of the above discussion, I have no hesitation to hold that Ext. 9/3 is valid document. Nothing has been shown in the case which will induce me to accept the view that the plaintiff had not voluntarily executed the document with knowledge of its contents. Accordingly,? issue No. 2 is decided in the negative. ISSUES NOS. 3 and 4 The plaintiff stated in his evidence that the partnership was entered between him and defendant No.

1. The partnership was carried on for about three months. The plaintiff admitted in his cross‑examination that orally they has entered into partnership. The plaintiff also admitted in his cross‑examination that it was not acted upon. The partnership business in question was admittedly not registered under the Partnership Act, 1932. The, plaintiff did not pray for dissolution of the partnership in question. The partnership business in question was admittedly no dissolved and the accounts were not settled between the parties. It has been held in several reported decisions that section 69(3)(a) of the Act is an exception to subsections (1) and (2) of section

69. Subsection (2) bars a suit by or on behalf of a firm against third parties to enforce a right arising from a contract unless the firm is registered. But the last sentence of subsection (3)(a) of Section 69 provides that the provisions of subsections (1) and (2) shall not affect the enforcement of any right or power to release the property of a dissolved firm. The suit is not covered by section 69(3)(a). Accordingly the suit being hit by section 69(1) of the Partnership Act is liable to be dismissed. The learned counsel for the plaintiff has not pressed the claim of Rs. 30,

000. For the aforesaid reasons and circumstances, I am of tire opinion that the plaintiff is not entitled to any relief. The suit is accordingly dismissed with no order as to costs. M.Y.H./N‑142/K???????????????????????????????????????????????????????????????????????????????? Suit dismissed.