P L D 1966 (W (PLP)

INAMULLAH, J.‑

This is a defendants' appeal against the judgment and decree of the First Class Sub‑Judge, Hyderabad dated the 30th March, 1959 in a suit for recovery of Rs. 44,980 together with interest from the date of the institution of the suit till its payment. The facts as stated in the pleadings of the parties are these: The plaintiff is a registered firm known as "Engineering & Co.", Hyderabad. It entered into an agreement with defendants Syed Ghulam Hussain Shah and Syed Hussainali Shah on 12th September 1952, to repair their cinema (Fazlani Talkies) under the terms and conditions provided in the said agreement. The plaintiffs started the work on 27th July 1952, and carried on up to 25th December 1952. A sum of Rs. 82,579 was payable on account of reconstruction charges by the defendants. The defendants paid a sum of Rs. 42,418 on different dates after persistent demands leaving a balance of Rs. 40,

161. The defendants failed to pay the balance of the amount due to the plaintiffs. The defendants, however, asked the plaintiffs to have the bills scrutinised and checked by their surveyor, Mr. Lawrence with the help of one Muhammadali Maulabux. Mr. Lawrence checked the bills and found them correct. The plaintiffs sent a final notice for payment of the amount due on 17th October 1953, but without any result. They filed the suit giving rise to the appeal on 26th August 1954, for Rs. 40,161 and Rs. 4,819 as interest together with future interest.

2. The defendant No. 1, Ghulam Hussain Shah filed a separate written statement and denied his liability to pay the amount in suit. He stated that he had no interest in the Fazlam Talkies and that he signed the agreement dated the 17th October 1952, at the request of the defendant No. 2 Syed Hussainali Shah. He signed the said agreement without reading the terms and conditions mentioned therein. In short he denied all the allegations made in the plaint.

3. Syed Hussainali Shah (defendant No. 2) in this written statement challenged the facts stated by the plaintiffs in their plaint and did not accept that any amount was payable by him to the plaintiffs. He stated that there was no agreement between him and the plaintiffs. He admitted to have entered into an agreement with Raza Hussain in his individual capacity and not with the plaintiff‑firm, and that no amount was due to even Raza Hussain. He stated that the suit was not maintainable as it was filed by Messrs Engineering and Co. which was not the contracting party and that the suit was bad in law as it was filed by a firm which was not registered. He claimed to be an agriculturist entitled to the benefit of the Deccan Agriculturists Relief Act.

4. The pleadings between the parties gave rise to the following issues :‑ (1) Is the suit not maintainable ? (2) Is the suit not in proper form ? (3) Has the plaintiff no right to sue ? (4) Is the suit barred under section 69 of the Partnership Act. (5) Are the defendants agriculturists ? If yes, what effect ? . (6) Is the suit bad for non‑joinder of necessary parties (7) Did the plaintiff firm reconstruct "Fazlani Talkies" as per agreement dated 12th September 1952, as laid. (8) What amount is recoverable by the plaintiff from the defendants towards the said construction work ? (9) Did the survey or Mr. Lawrence check and scrutinise the bills of the said construction work. as proposed by the defendants and as laid down in para. No. 6 of the plaint. If yes, what effect ? (10) What amount of interest is recoverable from the defendant ? (11) To what relief the plaintiffs are entitled ? (12) What should the decree be ? ??????? (1A) Is the suit within time ? The learned First Class Sub‑Judge found all the issues in favour of the plaintiffs. It may be mentioned that Issue No. 6 regarding the non joinder of necessary parties was not pressed and; therefore, it may be taken to have been decided against the defendants.

5. Mr. Sharifuddin Pirzada and Mr. Shamsul Haq appeared for the appellant. Mr. Sharifuddin Pirzada addressed us on question of law and Mr. Shamsul Haq on the question of liability of the appellant to pay the decretal amount.

6. Mr. Sharifuddin raised three‑fold contentions namely, (1) that the suit by the firm Messrs Engineering & Company was not competent as the said firm was not the contracting party but that it was one Raza Hussain who had entered into the contract with the appellant ; (2) that the suit was bad in law as the same was filed by a firm which was not a registered one ; (3) that the appellant being an Agriculturist, was entitled to the benefit of Deccan Agriculturists Relief Act. We propose to dispose of these contentions separately.

7. Mr. Sharifuddin Pirzada contended that the agreement dated the 12th September 1962; was entered into between the appellant and one Babu Raza Hussain and not the firm Engineering & Co. He submitted that the opening words of the agreement namely "Babu Raza Hussain of Engineering & Co. of Sind" were merely descriptive. He contended that "of Engineering & Co." was not sufficient to disclosed that Babu Raza Hussain had entered into the agreement on behalf of the firm. In this connection he relied on the fact that the agreement was signed by Raza Hussain without indicating that he has signed it as representative of the firm. In this connection reliance was also placed on certain documents on the record to show that the work was done by Raza Hussain in his individual capacity and not on behalf of the firm. These 'ate Exh. f0, measurement of work done by Syed Raza Hussain, Exh 52, abstract of the work done by Raza Hussain, Exh. 55, letter by Syed Raza Hussain to Syed Hassanally Shah, the appellant and Syed Ghulam Hussain Shah. Reliance has been placed on these documents to show that Raza Hussain was dealing with the appellant in his own individual, capacity and not on behalf of the firm. 1\/Ir. Sharifuddin submitted that in the case of a contract in writing the question whether the agent has contracted personally c r on behalf' of the firm would depend upon the intention appearing from the terms of the written agreement as a whole. He relied on a passage from Law of Agency by Bowstead 11th Edition 1951, Article 119, p.

254. Reference was also made to Law of Agency by Stoljar 1961 Edition, p. 251 in support of the submission that where a contract is a written one and the agent has signed in a particular way, he may be treated to have contracted personally. Reliance was placed on two reported decisions namely A I R 1948 P C 146 (sic) and Atmaram v. Notandas Devi (A I R 1930 Sind 4). These cases relate to Negotiable instruments Act. It was held in those cases that the name of a person or firm to be charged upon a negotiable document should be clearly stated on the face or on the back of the document so that the responsibility may be made plain and can be easily recognised. It is not sufficient that the principal's name should be in some way disclosed. It must be disclosed in such a way that on any fair interpretation of the instrument his name is the real name of the person liable upon the bills.

8. At the very outset it may be stated that Mr. Sharifuddin failed to cite any case of ordinary contract where a person may have meant to enter into a contract on behalf of the firm and .may not have clearly expressed the same. The cases that have been cited at the Bar were those relating to Negotiable Instruments Act. In the cases cited the party which had signed the contract desired to wriggle out of his liability on the ground that the firm was liable and not the individual who had signed it. In the instant case the circumstances are quite different. Babu Raza Hussain does not desire to have the benefit of the contract himself but wants to share it along with his other partners.

9. There is no doubt that the question whether Babu Raza Hussain had entered into an agreement with the appellant and Ghulam Hussain Shah in his individual capacity or on behalf of the firm would primarily depend upon the language of the agreement dated the 12th September 1952, which was entered into between the parties. Section 91 of the Evidence Act would be a bar to oral evidence. Moreover, it is the case of Raza Hussain that he entered into the agreement on‑behalf of the firm. The question, therefore, is whether the term "of Engineering & Co." in the circumstances of the present case is sufficient to hold that Raza Hussain entered into. the contract on behalf of the firm. In this connection one cannot lose sight of the fact that this is not a case of Negotiable Instruments Act where an agent wants to take shelter behind the plea that he has signed the instrument on behalf of the firm. It is a case, as already mentioned, where one person wants to share the profits with others. The agreement for contract was entered into in September 1952, while the agreement of partnership is dated the 23rd July 1952. The object of the partner?ship firm was construction of houses, roads, etc. According to Raza Hassain the first contract that the firm took, for construction was with the appellant and Ghulam Hussain moreover, if the contract in fact was entered into between Raza Hussain and the defendants there is no reason why Raza Hussain would have liked to share the money with others. The question, therefore, what does the term "of Engineering & Co." mean. The term no doubt is a vague one. It can be descriptive as well denoting the representative capacity of the person referred to namely Raza Hussain. The word "of" is used as indicating origin. In the circumstances of this case which can be taken into consideration, (p. 239, Partnership Act by Om Prakash Aggarwala 1959 Ed.) we would hold that Raza Hussain entered into the agreement with the defendants on behalf of the firm. That this is so is also clear from the fact that the plaintiffs Advocate sent a notice on 17th October 1953, on behalf of the firm Engineering & Co. demanding the payment of the amount in suit (Rs. 42,418.00). The plaintiffs have filed a postal receipt Exh. 57 in respect of the said notice. It seems two notices were sent on the same date to the two defendants. The defendant Ghulam Hussain Shah admits in his written statement to have received the notice. The appellant does not admit to have received the notice. There is, however, no reason to believe that the appellant did not receive the notice when his co‑defendant had received the same. The suit was filed on 26‑8‑1954. If there was no contractual liability between the appellants and the plaintiffs' firm, the appellant had sufficient time from October 1953 to August 1954 to reply to the Advocate of the respondents. It appears to us that this technical plea has been taken only to avoid the payment to the plaintiffs.

10. Mr. Sharifuddin, the learned Advocate for the appellant did formulate the point that the suit was not maintainable as it was filed by a firm which was not registered but later on he did not press this question. It is, therefore, held that the suit has been properly filed.

11. The last point that requires consideration is whether the appellant is an agriculturist so as to be entitled to the benefit of the Dekkan Agriculturists Relief Act, 1879. In order that the appellant may claim the relief provided under the Agriculturists Relief Act he must be an .agriculturist. An agriculturist for the purposes of the Act means a person who by himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture carried on within the limits of a district or part of a district to which this Act may for the time extend or who ordinarily engages personally in agricultural labour within those limits. The admitted position is that the appellant has made a gift of his agricultural land by a registered deed to his son Shah Jehan. It would appear from the cross‑examination of the appellant that at the time when he was examined he was a film producer. He also admitted to carry on cotton business worth about a lakh a year. In these circumstances it cannot be said that he is an agriculturist as defined in the Act.

12. Mr. Shamsul Haq, the learned Advocate for the appellant argued before us two issues, namely whether one Lawrence checked and scrutinised the bills of the construction in question and as to what amount was recoverable by the plaintiffs from the defendants.

13. According to the plaintiffs' case they demanded, after the completion of the construction, the amount due from the defendants. The plaintiffs persisted in their demands but the defendant put it off on some ground or other. It seems that the defendants were not satisfied with the measurement of the work done by the plaintiffs. The appellant Hussain Ali Shah wrote letter Exh. 49 to get the measurements checked by Lawrence, a Government Overseer. Thereupon, according to the plaintiffs, Lawrence along with Muhammadli checked the measurements. Lawrence took measurements and prepared Exh.

50. This has been proved by P. W. 2 Muhammadali who recognised the handwriting of Lawrence. Mr. Shamsul Haq contended, in the first place, that Exh. 49, though admittedly in the handwriting of Hussainali Shah, is not addressed to Lawrence. It is true it is not addressed to Lawrence but it is apparently addressed to Babu Raza Hussain. Raza Hussain P. W. 5 stated that he received the chit Exh. 49 from Hussainali Shah to allow Lawrence to take measurements. This chit is signed by Lawrence as stated by Raza Hussain. It is next contended by Mr. Shamsul Haq that Exh. 50 which is the measurement of the work done by the plaintiffs has several erasures and is, therefore, not reliable. There is not much force in the contention. In the first place, there is nothing on the record to show that these so‑called erasures are manipulations. In the second place, if the erasures were manipulations it was very easy for the appellant to have proved the same by requesting the Court to appoint some Commissioner to go and verify the measurements in respect of the erasures at the spot but this was not done. In the third place, after a perusal of Exh. 50 it would appear that there is no erasure but only scoring out of certain figures. The figures that have been scored out are quite clear. It seems that there was some mistake in the measurements with the result that they had to be scored out and the correct figure put in its place. A perusal of the measurements Exh. 50 would also disclose that some of the figures substituted are to the advantage of the appellant. Lastly, it was contended that the endorsement by Hussainali Shah on Exh. 50 "the measurements from Items Nos. 1 to 33 and Items 1 to 16 accepted by me" is a manipulation. The learned Advocate admitted that his client had written in his handwriting only this "measurements from Items Nos. 1 to 16 accepted by me." It seems to us that the figures Nos. 1 to 33 are not in the handwriting of Hussainali Shah. It is in the handwriting of someone else. This, however, is not of much consequence so long as appellant Hussainali Shah admitted his signature on Exh.

50. This fact that he signed Exh. 50 lends support to the statements of Muhammadali and Raza Hussain that the measurements were taken by Lawrence at the instance of the appellant.

14. P. W. Muhammadali stated that he prepared Exh. 53 which is the measurement of work done by the plaintiffs at the instance of the appellant. It is noticeable that Hussainali Shah did not challenge the correctness of the measurements mentioned in Exh.

53. All that he challenged was that it was not prepared at his instance. He also did not challenge the correctness of Exh. 52 which is the abstract of valuation on the basis of the measurements mentioned in Exh.

53. So long as the correctness of the measurements and the valuation prepared on the basis of the same is not challenged by the appellant, it is immaterial whether they were prepared at his instance or otherwise.

15. Once the measurements of the work done on Fazlani Talkies, as mentioned in Exh. 50 or Exh. 53, is taken to be correct, the only question that would require consideration would be as to whether the work mentioned in Exh. 50 and Exh. 53 was carried on by the respondents or anyone else. It is noticeable that Hussainali did not state before the Court that any part of the work mentioned in Exh. 50 or Exh. 53 was carried on by any of his contractors. It was very eas3e for Hussainali Shah to have produced the contractor who had done any part of the work mentioned in Exh. 50 or Exh.

53. This has not been done by Hussainali Shah. Mere vague statement on the part of Hussainali Shah that most of the work was done by other contractors will not demolish the case of the respondent's. On behalf of the plaintiffs, there is the evidence of Hasainali Khan, Muhammadali, Bux Ali, Muhammad Umer and Babu Raza Hussain to prove that the plaintiffs had carried on the construction and repairs of Fazlani Talkies. Their statements find support from the circumstance that the plaintiff did not reply to the notice of the respondents dated the 17th October 1953. The appellant had enough opportunity to send a reply to the respondents as the suit was filed in August 1954. On the other hand, the appellant examined D. W. 3 Abban. He stated that he was working as a carpenter in the construction work of Fazlari Talkies and was supervising the construction work of the contractor. According to him, a part of the work was done, by one Kadir Bux. Thereafter one Hafiz Manzoor took up the work and lastly the work was taken up by Raza Hussain. According to this witness when Hafiz Manzoor left the work about half the work had already been completed. This witness cannot be believed. In the first place he was a mere carpenter. In the second place, if as much as half work had already been done this fact would have been mentioned in the agreement entered into between the appellant and Raza Hussain on 12th September 1952. A perusal of the agreement dated the 12th September 1952, would lead one to the conclusion that Raza Hussain was to commence the work of repair and construction of Fazlani Talkies from the beginning to the end. The appellant also examined Hafiz Manzoor who is only a mason by profession. He admitted that there was no written agreement between him and the appellant for the construction of Fazlani Talkies. He did not receive any payment by cheque. He admittedly did not keep any account of material used in the building or labour that he employed. He could not name any shop from which he purchased material. According to him he took up the work after Raza Hussain. On the other hand, Abban stated that Raza Husain took up the work after Hafiz Hussain left the work. In these circumstances, it is not possible to place any reliance on the statement of the witnesses of the appellant. We would hold that the work to which measurements Exh. 50 and Exh. 53 relate were carried on by the respondents.

16. We may observe that the learned Advocates for the appellant did not in the alternative challenge the amount claimed by the respondents. It was open to the appellant to challenge, in the first place, that the work was not done by the respondents and, in the second place, that the whole amount claimed by them was not due to them.

17. For the reasons given above, we would dismiss the appeal with costs. S.Q.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.