P L D 1953 Lahore 107 (PLP)

RAHMAN, J.‑--This order will dispose of Civil Revision No. 2 of 1952 which has arisen out of a suit brought by Karim Bakhsh for recovery of Rs. 499 from Mubarik Ali and his two sons, Shaukat Ali and Zafar Ali alias Muzaffar Ali, whom he described as propreitors of the shop known as `Mubarik Ali & Sons'. The suit was decreed by the Judge, Small Cause Court, Lahore, with costs and two of the judgment‑debtors, namely, Mubarik Ali and Shaukat Ali, have appealed. To appreciate the points raised in revision it is necessary to mention briefly the facts on which the claim was founded. In the plaint Karim Bakhsh stated that the defendants were proprietors of 'Mubarik Ali & Sons' and that from the 5th January 1945 till the 2nd March 1945, they got work done by the plaintiff to the value of Rs. 882‑0‑9, but they paid only Rs. 694‑12‑0 from time to time. On the 2nd March 1945, the balance of Rs. 187‑4‑9 was acknowledged as due from the defendants on their behalf by defendant No. 2, Shaukat Ali, in the plaintiff's account book under his own signature. Again from the 3rd March 1945 to the 26th October 1945, the defendants placed further orders with the plaintiff which were carried out and for which a payment of Rs. 1604‑4‑9 was due. Taking into account the previous balance, the total sum due was Rs. 1791‑9‑

6. Out of this, Rs. 1,200 were paid from time to time and on the 26th October 1945, defendant No. 2, Shaukat Ali, again struck a balance in the plaintiff's account, under his own signature for Rs. 591‑9‑

6. On the plaintiff's giving notice, defendant No. 3, Zafar Ali, on the 19th October 1948, paid Rs. 31‑9‑6 and acknowledged under his hand a balance of Rs. 560 to be due on behalf of the defendants' shop. He gave a writing in the nature of a promissory note for that sum, Defendants were now alleging that they were separate from one another but according to the plaintiff they were in fact joint and were all liable for the sum of Rs. 560, out of which he relinquished Rs. 61 and claimed only Rs.

499. The contention raised on behalf of the petitioners is that War Ali defendant alone having executed the promissory note in favour of the plaintiff; there was no cause of action against the other two defendants and the claim should not have been decreed against them. In support of this proposition learned counsel for the petitioners relied on a Division Bench judgment of the Bombay High Court, reported as Sharanabsappa Tippanna v. Rachappa Basappa Shettar and others (A I R 1933 Bom. 101). In that case it was held that where a partner passes a promissory note not in the name of the firm but in his individual capacity, the other members of the firm would not be liable. The position, it was pointed out by the learned Judges would be different if there was an indication in the plaint that the suit was based, in the alternative, on the loan advanced to the partnership. Another authority cited in support of this position was a Division Bench judgment of this Court in D. Johnstone v. Mst. Jan Bibi and another (A I R 1928 Lah 722). But as I read the plaint I do not think the claim is founded on the pronote. The pronote itself evidenced what was due on an existing account between the parties and although the plaint cannot be said to be artistically worded, the purport clearly is that the plaintiff sued the three defendants as constituting one firm, on the debt, and not merely on the pronote. The authorities cited, therefore, are dis tinguishable on the facts from the present case. For the same reason section 27 of the Negotiable Instruments Act relied on by learned counsel has no relevancy in the present case. The only other point urged on behalf of the petitioners was that in the plaint, Karim Bakhsh described himself as a proprietor of the shop styled as "Fair Brothers". Mr. Abdur Rashid argued that this firm being an unregistered one, the suit was not competent. I cannot allow this point to be raised at this stage in revision because it involves a question of fact and is not a pure question of law. It may be that Karim Bakhsh, as it suggested, is the sole proprietor of "Fair Brothers". In that case there could be no exception taken to the competency of the suit. The failure of the petitioners to raise this point in the trial Court precludes them from agitating it in this Court. There was some attempt on behalf of the petitioners to argue that in fact there was no partnership between the three defen dants. After being taken through the evidence on the record I see no ground for disturbing the conclusion arrived at by the learned Judge Small Cause Court that the three petitioners were in fact partners of a firm which had placid orders with the plaintiff. The mere fact that Mubarik Ali, one of the defendants had never acknowledged any balance in the account under his own signature, does not affect the position. The evidence shows that the two sons, Shaukat Ali and Zafar Ali, were really running the business on behalf of the firm as their father was ailing for a long time. The very fact that the shop was known as 'Mubarik Ali & Sons', as was admitted by the defendants, corroborates the plaintiff's allegations. I, therefore, see no ground for interference in revision in this case and dismiss the revision with costs. A.H. Petition dismissed.