2003 PLP 123 (CLD)

Malik Ajab Khan, respondent No. 1 filed Suit No. 199 of 2001 on 2‑7‑1995 seeking declaration to the effect that he was partner with the petitioner (defendant No. 7 in the suit) on the basis of registered partnership deed dated (4‑2‑1974 and the denial of petitioner as well as other respondent about the said partnership is illegal and ineffective upon his right and that the refusal of respondents Nos.2 to 7 to accept him as co‑dealer is also illegal. A perpetual injunction (as prayed for) was also sought alongwith damages of Rs.20,

000. The said suit was resisted by the petitioner and respondents Nos.2 to 8 by filing written statement. The learned trial Court after framing as many as six issues dismissed the suit of the plaintiff/ respondent No. 1 vide judgment and decree dated 24‑7‑1998. Being aggrieved of the judgment and decree, respondent No.1 filed Appeal No.90/ 13 of 1998 in the Court of District Judge, Peshawar, which was entrusted to the learned Additional District Judge‑I, Peshawar for decision. The learned Appellate Court after hearing the learned counsel for the parties accepted the appeal partially, the judgment and decree of the learned trial Court was set aside and the appeal to the extent of damages of Rs.20,000 was dismissed vide judgment and decree dated 8‑4‑1999. Being not satisfied with the judgment and decree of the learned Appellate Court, the petitioner has filed the revision petition in hand.

2. Sheikh Wazir Muhammad, the learned counsel representing the petitioner, argued that the judgment of the learned trial Court was in accordance with law and the facts and circumstances of the case whereas the judgment of the learned Appellate Court is based on misconception of law. It was further argued that the petitioner has not signed any agreement of partnership with respondent No. 1 and in absence of any contract the learned Appellate Court had no jurisdiction to direct respondents Nos.2 to 7 to appoint plaintiff/ respondent No. 1 as co‑dealer of the petitioner. It was also argued that the learned Appellate Court also failed to appreciate the law relating to partnership, joint business firms and registration of contract. The suit filed by respondent No. 1 /plaintiff was hit by section 69 of the Partnership Act and was rightly dismissed by the learned trial Court but the learned Appellate Court did not properly appreciate the law in this regard.

3. On the other hand, Muhammad Asif, the learned counsel representing respondent No. 1, argued that the judgment and decree passed by the learned Additional District Judge was based on proper appreciation of evidence and the law applicable to the case in hand. It was further argued that all the documents produced by the plaintiff/ respondent No.1 show that he was co‑partner with the petitioner and the documents placed on record had been signed by the petitioner as co partner with respondent No.1 but all those documents were conveniently ignored by the learned trial Court while the same were properly appreciated by the learned Appellate Court, therefore, the judgment and decree passed by the learned Appellate Court needs no interference.

4. I have heard the learned counsel for the parties at length and perused the record with their assistance.

5. In order to prove his case, Malik Ajab Khan respondent No.1 /plaintiff examined Muhammad Ikhlaq‑ul- Hassan, Registry Moharrir of the Office of Sub‑Registrar, Peshawar as P.W.1 who produced the original Register Bahi No.4, Volume No. 106 at page 10 to 12 wherein Partnership Deed No. 51 was entered on 14‑2‑1974, copy Exh.P.W.1/1. Nasir Khan, Assistant to Area Manager, Pakistan State Oil was examined as P.W.2, who placed on record letter dated 14‑6‑1977 written by him to Divisional Manager, Rawalpindi (Exh. P.W. 2/1), copy of letter dated 9‑6‑1977 (Exh. P.W. 2/2), copy of letter dated 3‑6‑1977 (Exh.P.W.2/3), copy of letter dated 1‑6‑1977 for deletion of the name of Malik Mehtab Khan and insertion of the names of Malik Ajab Khan and Malik Suhbat Khan (Exh. P.W. 2/4), copy of Draft for Rs.9,978.75 dated 1‑8‑1977 delivered by Messrs Khyber Filling Station, Peshawar to the Divisional Manager, Rawalpindi, copy Exh. P.W. 2/5, a letter written by Malik Ajab Khan and Malik Suhbat Khan on behalf of Khyber, Filling Station to the Divisional Manager, Rawalpindi received on 14‑9‑1977 for deletion of the name of Hakeem Mehtab Shah, copy Exh. P.W. 2/6, copy of letter dated 1‑9‑1976 written by Mushtaq Ahmad, Officer of Pakistan State Oil to the Divisional Manager. Rawalpindi for deletion of the name of Hakim Mehtab Shah and further correspondence in the names of Malik Ajab Khan and Malik Suhbat Khan (Exh.P.W.2/7), copy of letter dated 16‑‑9‑1976 written by Muhammad Mushtaq. Officer of Pakistan State Oil to the Manager Legal for correction of the: name in Messrs Khyber Filling Station, Peshawar (Copy Exh.P.W.2/8), Malik Ajab Khan wrote letter to the Divisional Manager, Rawalpindi for change of the name duly signed by Malik Ajab Khan and Malik Muhbat Khan (Exh.P.W.2/9), letter dated 28th May Exh.P.W.2/10 and the replies given by the Government to the consumer were placed on record as Exh.P.W.2/11 to Exh.P.W.2/44. Malik Ajab Khan plaintiff appeared as P.W.3 and narrated the same facts which he has mentioned in the plaint. In rebuttal, Malik Subhat Khan defendant No. 7 was examined as D.W.1 who denied having executed any partnership deed with his brother Malik Ajab Khan. The evidence of the parties was thus closed.

6. On the denial of petitioner/ defendant No.7 regarding execution of Partnership Deed Exh.P.W.1/1, the burden to prove Exh.P.W.1/1 had shifted to respondent No.1 plaintiff. Neither the scribe of the Partnership Deed Exh.P.W.1/1 was produced nor any marginal witness thereto was examined to prove the contents of the said Partnership Deed. The only witness produced in support of the Partnership Deed was Muhammad Ikhlaq‑ul‑Hassan Registry Moharrir, Office of the Sub‑Registrar, Peshawar, who stated that at Sr. No. 51, Bahi No. 4, Volume No. 106 on pages 10 to 12 the Partnership Deed (ﺷﺮﺍﻜﺖ) was registered on 14‑2‑1974 but this evidence was not sufficient to prove the contents and execution of the Deed between the parties. The requirement of Article 79 of Qanun‑e‑Shahadat Order, 1984 was, therefore, not fulfilled by respondent No. 1/plaintiff.

7. Another aspect of the case is that Partnership Deed Exh.P.W. 1/1 was not registered with the Registrar of Firms as required by the Partnership Act, 1932. Although neither the contents nor the execution of the Partnership Deed Exh. P.W, 1/1, as mentioned above, was proved by respondent No.1 /plaintiff but if for the sake, of argument, it is admitted that the said Deed was registered, even then the same was not registered with the Registrar of Firms as per requirement of law mentioned above.

8. Respondent No. 1/plaintiff claimed himself to be partner with the petitioner/defendant No.7 in the firm known as Khyber Filling Station on the basis of Partnership Deed Exh.P.W.1/1. He instituted the suit alleging to be partner in the said firm. The suit‑filed by him was hit by the provisions of section 69 of the Partnership Act, 1932. The relevant portion of the said section of law is reproduced as under:‑‑ "69(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." A bare reading of the above section of law shows that no suit could be filed/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 said firm to enforce a right arising from a contract unless the firm was registered with the Registrar of Firms and the person suing i.e. plaintiff has been shown as a partner in the Register of Firm. Plaintiff/respondent No.1 claimed to be partner on the basis of Partnership Deed Exh.P.W.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, 1832. The learned trial Court, while appreciating the law applicable to the case, had rightly dismissed the suit of respondent No. 1 /plaintiff. The findings of the learned Appellate Court in this regard are not based on proper appreciation of law. I, therefore, accept the revision petition in hand, set aside the judgment and decree of the learned Appellate Court and restore that of the learned trial Court. There shall, however, be no order as to costs. Q.M.H./M.A.K./554/P Revision allowed.