1990 PLP 1039 (MLD)

3. The learned Senior Civil Judge, Abbottabad, however, rejected the application of the petitioners vide his order dated 6‑1‑1973 holding that the purpose for which the amendment of the written statement is sought relates to a point of law which can be raised at any time and that the same shall be considered at the time of final arguments in the case. He, therefore, ordered the petitioners to produce their evidence on the next hearing i.e. 14‑3‑1973. Ultimately the learned trial Court passed the impugned order on 12‑4‑1979 whereby he dismissed the suit for lack of proof of the registration of the firm Mohammad Hussain & Co. and as such barred under section 69 of the Partnership Act.

4. The petitioners preferred an appeal before the District Judge, Abbottabad but their efforts in this behalf also proved abortive inasmuch as the same was dismissed by the learned District Judge vide his judgment dated 25‑9‑1984. Hence the intent revision petition.

5. I have heard Kh. Abdur Rashid, Advocate learned counsel for the petitioners and Mohammad Aslam Khan learned Assistant Advocate‑General for the respondents at length and also perused the record of the case with considerable degree of care.

6. It is contended on behalf of the petitioners that irrespective of registration or non‑registration of the firm of which the petitioner were partners, subsection (2) of section 69 of the Partnership Act has no applicability to their case inasmuch as the suit is instituted neither by the firm nor on behalf of the firm against the respondents, but has been filed by the petitioners in their personal capacity. He cited the case of Akhtar Ali Shah v. Mst. Umatul Islam, reported in P L D 1979 S C

815. He further contended that the provision of section 69 of the Partnership Act, which deprives the petitioners of the right to sue, needs to be strictly construed and not lightly invoked against him. He relied on a decision in the case of Allah Bakhsh v. Sayed Ghulam Rasool Shah reported in P L D 1957 (W.P.) Lah. 968.

7. As against this the learned Assistant Advocate‑General submitted that not only the heading but the very first paragraph of the plaint would indicate that the suit has been instituted by and on behalf of the firm Mohammad Hassan & Co. by its two partners, namely, Sardar Mohammad Hassan and Sardar Turab Khan. He submitted that it is also manifest from the agreement dated 8‑4‑1971, entered into by and executed between the Government of N. W. F. P. through its Chief Conservator of Forests and Firm Messrs Mohammad Hassan & Company Forest Contractors of Havelian. He therefore, contended that the petitioners cannot circumvent the law by claiming the suit as having been instituted in their personal capacity, moreso when in such a capacity they have no locus standi to the grant of the declaration sought for inasmuch as the impugned orders in this regard issued by the respondents were in the name of Mohammad Hassan & Co. and not to the petitioners in their individual capacity as its partners.

8. I have given my serious consideration to the submissions made by the learned counsel in support of their respective pleas.

9. Subsection (2) of section 69 of the Partnership Act, 1932 runs as under:‑‑ "

69. Effect of non‑registration. (1) .... (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) . . . . . . . . . . . . A bare reading of above‑quoted provision would reveal that it stands as a bar o a suit for enforcing a right arising out of a contract and prevents a Court from taking cognizance of a suit brought by a firm which is not duly registered.

10. While I fully appreciate the ingenuity of the argument of the learned counsel for the petitioners I am afraid, in view of a clear and unambiguous language of the afore-quoted provision of the Partnership Act, it would rather recoil on the petitioner's case itself in that if the argument of the learned counsel is accepted, then the petitioners are out of Court because the impugned orders of the respective respondents are issued to and against the Firm Mohammad Hassan & Co. and not to the petitioners in their personal capacities. As such, I am afraid, this argument will not be of any avail to him nor can the authorities cited by the learned counsel advance his cause. For, arising totally from different facts it has no applicability to the facts of the case in hand.

11. A reference to the record also reveals that no such plea as has been raised by the learned counsel for the petitioners in the instant petition, had ever been taken either in the trial Court or before the appellate Court during the course of the proceedings. On the other hand, the record indicates that the petitioners tried to set up a claim that the suit is filed by their Firm and that toe registered under the law. This is quite apparent from the very opening sentence of the cross‑examination of one of the petitioners namely Turab Khan when he states, "We are a registered Firm but I cannot produce the registration deed at this time". However, despite giving a number of opportunities to produce the certificate of registration, as is evident from the order sheets Nos. 63 to 67 of the trial Court, they failed in this behalf. It may also be borne in mind that burden of proving the factum of registration of the Firm lay heavily on the shoulders of the petitioners which they miserably failed to discharge.

12. I am, therefore, clear in my mind that not only the petitioners have instituted the suit on behalf of the Firm which was not registered on the day of its institution but, for the foregoing factual and legal aspects of the case, their suit has also been rightly dismissed by both the learned lower Courts and their concurrent findings in this regard, with no jurisdictional error therein, hardly merits an interference.

13. I am mindful of the hardship of the petitioners, in that, their suit stands dismissed on technical grounds but the language of subsection (2) of section 69 of the Partnership Act, 1932 is too unequivocal to permit any doubt in the proposition that in case of a contract having been entered into by a firm, even though unregistered at that time, when it brings a suit, without duly registered under the law, would render the institution thereof entirely invalid. Harshness of a law, notwithstanding, I am afraid it shall have to be given effect to with all its rigour and rigidity. For, the Courts of law are supposed to administer the law as it stands on the statute book.

14. Resultantly this revision petition fails, the impugned judgments of both the learned lower Courts are hereby maintained and exconsequenti the suit of the petitioners stands dismissed with no order as to costs. AA./979/P Revision dismissed.