P L D 2012 Lahore 18 (PLP)

9. We have heard the learned counsel for the parties and have examined the record with their assistance.

10. A perusal of the plaint shows that the appellant admitted that there was a partnership deed dated 22-2-1986 between the appellant and respondent No.1 which related to their joint business of setting up and running a school in Lahore. The said document spelt out the terms and conditions which had mutually been settled between the parties dealing with various aspects of the partnership business including but not limited to allocation of profits and their respective rights and obligations. It was alleged in paragraph-6 of the plaint that it was mutually agreed by the appellant and respondent No.1 that after separation of their business in Kuwait in 2003 that the partnership deed relating to the school business at Lahore will be kept in tact and the parties will honour their commitments. The appellant also categorically admitted to have received some profits arising out of the partnership business. It is noticed that in various paragraphs of the plaint including paragraphs Nos.8 and 9 the existence of a partnership deed and a partnership business was categorically admitted and in the prayer clause specific performance of the partnership deed was sought along with a declaration that the respondent was bound to act upon the partnership deed dated 22-2-1986 executed between the parties in its true letter and spirit.

11. The contents of the plaint leave us in no manner of doubt that this was a suit filed by one disgruntled partner against another seeking rendition of accounts and profits of the partnership in addition to specific performance of the partnership deed. It is important to note that the partnership deed was produced by the appellant himself with the plaint in support of averments made in the plaint to establish that there was indeed a partnership business between the appellant and the respondent. The terms and conditions to run the said business had been incorporated in the partnership deed. It was alleged that the respondent had violated the terms and conditions of the partnership deed which had given rise to a cause of action in favour of the appellant. It is also not denied that the partnership deed was never registered. In this background, the aforesaid application under Order VII, rule 11, C.P.C. was moved on the ground that the suit was barred by law in terms of an embargo against such suits contained in section 69 of the Partnership Act 1932. For ease of reference section 69 is reproduced below:-- "

69. Effect of non-registration.--(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (3) The provisions of subsections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect- (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realize the property of a dissolved firm, or (b) the powers of an official assignee, receiver or Court under the Insolvency Karachi Division Act, 1909, or the Provincial Insolvency Act, 1920, to realize the property of an insolvent partner."

12. From a plain reading of section 69(1) the words "no suit shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered" are clear and unambiguous. These admit of no other interpretation. Admittedly, the appellant according to his own showing was a partner with respondent No.1 in a firm which was unregistered and all these facts can be gleaned from the contents of the plaint without looking of any other document including the written statement filed by the respondents.

13. A plain reading of section 69(1) seen in the backdrop of the averments of the plaint makes it abundantly clear that the bar contained in section 69 of the Act is fully attracted to the facts and circumstances of the present case. In this regard it would be profitable to refer to Maxwell on Interpretation of Statutes:-- "A statute is the will of the Legislature, and the fundamental rule of interpretation to which all others are subordinate, is that a statute is to be expounded, according to the intent of them that made it. If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. The subject of all interpretation of a statute is to determine what intention is conveyed, either expressly or impliedly, by the language used, so far as is necessary for determining whether the particular case or state of facts presented to the interpreter falls within it. When the intention is expressed, the task is one of verbal construction only; but when the statute expresses no intention a question to which it gives rise and yet some intention must necessarily be imputed to the Legislature regarding it, the interpreter has to determine it be inference grounded on certain legal principles. "The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and, otherwise, in their ordinary meaning; and, secondly, that the phrases and sentences are to be construed according to the rule of grammar. From these presumptions it is not allowable to depart where the language admits of no other meaning. Nor should there be any departure from them where the language under consideration is susceptible of another meaning, unless adequate grounds are found either in the history or cause of the enactment or in the context or in the consequences which would result from the literal interpretation, for concluding that interpretation does not give the real intention of the legislature. "When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpret what has no need for interpretation. Absoluta sentential exponsitore non indigent. Such language best declares, without more, the intention of the Lawgiver, and is decisive of it. The rule of construction is, to intend the legislature to have meant what they have actually expressed. It matters not, in such a case, what the consequences may be. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous. In the second cited case of United Cotton Factory, Hydrabad v. Ahmad Khan, PLD 1960 Karachi 774, held as follows: "The provisions of section 69 of the Partnership Act are mandatory and there is no power of condonation vested in the courts to grant to the defaulting firm in this respect any relief against the disability imposed by this section. The prohibition contained in the section is against the institution of the suit or the proceedings of the nature mentioned therein and its effect, therefore, has to be determined at the time of the institution of the suit or proceedings. The section entails a disability on the part of a court to take cognizance of the suit or proceedings from their very inception in the same way as it would not take the cognizance of a suit barred by limitation or of a suit suffering from a defect of jurisdiction in the form in which it is instituted." In the case of Mrs.Shaista Begum v. Government of Sindh and 2 others (1994 MLD 274), it was held as follows:-- "In case of non-registration of a firm, the partnership firm and its partners would suffer from legal disability in filing suits against parties and as against one another in terms of section 69 of the Partnership Act. Similarly under section 68 of Partnership Act "Any statement, intimation or notice recorded or noted in the Register of Firms shall, as against any person by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact therein stated." In the case of Malik Subhat Khan v. Malik Ajab Khan and others (2003 CLD 123).-- "Plaintiff/respondent No.1 claimed to be partner on the basis of Partnership Deed Exh.PW.1/1 but the said partnership, as stated above, was not registered with the Sub-Registrar of Firms. The effect of non- registration of the firm would be that the partnership firm and its partners would suffer from legal disability in filing suit against the party and as against one another, therefore, the suit filed by him was hit by the provisions of section 69 of the Partnership Act, 1932. The learned trial Court, while appreciating the law applicable to the case, had rightly dismissed the suit of respondent No.1/plaintiff." Likewise in the case of Habib Bank Ltd., Karachi v. Mian Muhammad Yaqoob Mian Muhammad Ashfaq Shafi and 3 others [1982 CLC (Karachi 714], the Court came to the following conclusion:-- "Under section 69(1) a suit to enforce a right arising from the contract or conferred by the Partnership Act filed by or on behalf of any person suing as a partner in unregistered firm against the firm or person alleged to be or to have been a partner in the firm is barred". It has neither been argued nor alleged before us that the firm was dissolved at any stage. In fact a perusal of the contents of the plaint indicate that it sought specific performance of the alleged partnership a copy whereof had been appended with the plaint. As such the bar contained in section 69 of the Partnership Act was clearly attracted and the suit filed by the appellant was barred by law.

14. As far as the argument of the learned counsel for the appellant that the learned trial court in arriving at its conclusion relied on defence pleas raised in the written statement is concerned, a perusal of the impugned order shows that the argument raised by the learned counsel for the appellant is ill founded. Even otherwise, as enumerated above, we have carefully gone through the impugned order as well as plaint and find that the order passed by the learned subordinate court is based upon averments made in the plaint and not on any other document including the written statement placed by the respondent on the file.

15. For reasons recorded above, we do not find any merit in this appeal. The impugned order is well reasoned, based upon the record and the correct application of the relevant provisions of law and their application to the facts and circumstances of the present case. Consequently, this appeal fails. It is accordingly dismissed M.H./N-72/L Appeal dismissed.