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Suit No. 46 of 1960, decided on 16th August 1965.
O. II, r. 2‑Provisions attracted only when cause of action in two separate suits same Test to determine identity of cause of action.
Provisions of Order II, rule 2 of the Civil Procedure Code, 1908 lay down that every suit must include the whole of the claim to which the plaintiff is entitled in respect of the same cause of action. Thus the question of applicability of Order II, rule 2 of the Civil Procedure Code will arise only when the cause of action in both the suits is same. Same matter can give rise to more than one cause of action. One of the tests to consider whether in two separate suits there is identity of cause of action is to see whether the same evidence can be led in proof of the claim. If the evidence to support the two claims is different then the cause of action would be different.
Swami Turiananda v. Sisir Kumar Sen P L D 1955 Dacca 96 ; Said Muhammad Khan v. Alam Slier Khan P L D 1959 Azad J & K 27; Bhimangouda v. S. I. Patil A I R 1960 Mysore 178; Shridhar Mahadeo v. Godulal Jethamal A I R 1940. Bom. 20 and Sheokumar Singh v. Bechan Singh A I R 1940 Pat. 76 ref.
Claim for fixed amount‑Plaintiff to give details of damages and adduce evidence in proof of such detail.
S. A. Maulvi for Plaintiff.
Naimuddin and Zahid Yar Khan for Defendants.
Dates of hearing: 17th May and 1st June 1965.
Plaintiff (Abdul Rashid) has filed the present suit for recovery of rupees one lac by way of damages.
2. His case is that defendant No. 1 (Burmah‑Shell Oil Storage and Distribution Company of Pakistan Ltd.) granted a licence to defendant No. 2 (Ahsanullah Khan) to run their petrol pump station near Green Nursery in PECH area on the main Road in the City of Karachi and all facilities for the sale of its petrol and petrol products. Defendant No. 2 was running this petrol pump under the name of Shaherah Service Station in partnership with Rokaria Brothers. It appears that some dispute arose between the partners in 1957 and it resulted in the retirement of two Rokaria Brothers in March 1957. On settlement of accounts, some amount was found due to these two brothers and defendant No. 2 had no money either to pay this amount to them or to expand his business. At the intervention of a common acquaintance, he agreed to take up plaintiff as his partner in this business and on this understanding and promise, plaintiff on behalf of defendant No. 2 paid a sum of Rs. 57,068‑11‑3 to Rokaria Brothers in March 1957. Thereafter further amounts were invested by plaintiff on the undertaking or promise given to him that he would be taken as a partner by defendant No. 2 in this business. Talks continued on but this could not be finalised till December 1957, when on 1‑12‑57 the deed of partnership between plaintiff and defendant No. 2 was executed and by that time a total sum of Rs. 87,755 was invested by the plaintiff. After the retirement of Rokaria Brothers, one Jamiluddin Haider, a man of their choice and selection was appointed as manager at this petrol pump, by defendant No. 1 and he was paid Rs. 200, by it and a further sum of Rs. 75, was paid to him by way of allowances by the said firm Shaherah Service Station. After defendant No. 2 found that he was secure he started finding excuses and objections in order to misappropriate the huge investments made by the plaintiff and also with the intention of bringing in one Adam who had already paid a sum of Rs. 17,500 to defendant No. 2 on the promise that he would be taken as partner. It further appears that defendant No. 1 had at one time agreed to this suggestion of defendant No. 2 to take up Adam as partner. Somehow or the other this proposal failed and one Sulaiman Bacho Japanwala who was a choice of defendant No. 1 was selected as partner of defendant No. 2 mainly for the consideration that Sulaiman had a plot of land and he had agreed to lease it out to defendant No. 1 for the purpose of new petrol pump service station. Ultimately this arrangement also fizzled out. Till 4‑3‑58 plaintiff and defendant No. 2.were carrying on this business and suddenly on that day and without any notice or previous intimation, the licence in favour of defendant No. 2 was cancelled by defendant No. 1 who sent their staff at the said petrol pump station. They stopped all sales and other work and took over possession of everything lying there. Even the accounts books were taken away by them. This was done in order to favour defendant No. 3 (Sultan, son of Karamali) as a result of conspiracy between all the defendants. Three days later, will on 7‑3‑58 defendant No. 3 through the intervention of defendant No. 1 paid a sum of Rs. 17,500 to defendant No. 2 (towards the consideration of the sale of assets of the firm Shaherah Service Station). Fresh licence was issued in favour of defendant No. 3 who is now running this petrol pump service station under the name of Sulka Service Station. Case of the plaintiff, therefore, is, that all the defendants "in pursuance of conspiracy and with the intention of destroying the business and goodwill of the said firm Shaherah Service Station and to promote their own interest and wipe out the investment made by the plaintiff and causing him loss" cancelled the licence in favour of defendant No. 2 and issued the same in favour of defendant No. 3. A criminal case was filed by defendant No. 2 against defendant No. 1 but ultimately they paid off their dues "and consequently an agreement. was entered into ,between defendants Nos. 2 and 3 on 11‑7‑58 for sale of right, title, interest, stock‑in -trade and furniture, fittings and fixtures of the said firm Shaherah Service Station, and defendant No. 3 further paid to defendant No. 2 the sum of Rs. 34,993‑1‑3 piecemeal with further promises and defendant No. 2 submitted an application in the Criminal Court for withdrawal of the criminal complaint filed by him against the Divisional Manager and three other employees of defendant No. 1 Company." He has therefore claimed the sum of rupees one lac by way of damages for sudden and abrupt cancellation of the licence and for destruction of the business, its goodwill and of investments made by the plaintiff, and for their very high handed action in taking possession of all the assets of the said firm Shaherah Service Station including even the books of accounts and cash and all papers and files. All the three defendants have disputed the claim of the plaintiff and they have denied the main allegation of conspiracy made against them.
3. It is admitted by defendant No. 1, that the licence issued in favour of defendant No. 2 who was running the petrol pump in partnership with Rokaria Brothers was cancelled in 1957, when the said partnership was dissolved and a fresh licence "was granted by defendant No. 1 to defendant No. 2 exclusively to run the said petrol service station in the capacity of a sole proprietor." According to it, this licence was subject to the terms and conditions mentioned in the agreement. Thus defendant No. 2 had no authority or power to admit the plaintiff into partnership to run the said business without its written previous consent. It is denied by him that plaintiff and defendant No. 2 had informed it about the alleged partnership between them. Jamiluddin Hyder was posted at the petrol service station on the recommendation of defendant No. 2 and he was partly paid by defendant No. 1 and partly by defendant No. 2. Allegations in respect of introduction of Adam as partner is denied by this defendant, and so also‑in respect of Sulaiman Sacho Japanwala. It is further pleaded that the licence in favour of defendant No. 2 was cancelled on 4‑3‑58, as it was not functioning satisfactorily. Investment in building, fittings, fixtures equipment and machinery according to this defendant were actually made by it. Paragraph 15 of its written statement mentions the reasons why this service station was not functioning satisfactorily by defendant No. 2 and therefore it had sufficient cause to withdraw the licence which it had to do after several warnings to defendant No. 2 and his failure to abide by the terms and conditions of the licence. Filing of criminal case by defendant No. 2 has been admitted by it. Its further case on this point is that the complaint was dismissed and thereafter, defendant No. 2 had approached this Court in revision which application was also dismissed. It has admitted to have issued a fresh licence to defendant No. 3 which according to it is in due course of business. Its main plea of defence is that there .was no privity of contract between plaintiff and defendant No. 1 and as such it cannot be held liable to the plaintiff, even otherwise plaintiff has suffered no legal loss due to the actions or steps taken by defendant No. 1.
4. The case of defendant No. 2 is that plaintiff had paid him a sum of Rs. 5,000 only on the basis of a receipt and thereafter they had executed jointly a pronote of Rs. 12,000 by way of friendly loan. It is denied that he had no money to make payments to Rokaria Brothers. On account of goodwill and help rendered by the plaintiff he had agreed to take the plaintiff as partner on making full investment of about Rs. 50,000 for half share but the plaintiff could not make up his mind for several months. At his request his brother Rafique Akhtar was appointed at the petrol pump and thereafter the trouble started. Both these brothers (plaintiff and Rafique Akhtar) joined hands and put their heads together to realise dues of this defendant from customers and clandestinely opened their account with the Mercantile Bank and the Punjab Provincial Co‑operative Bank without the knowledge or consent of the defendant showing the plaintiff as sole proprietor of Shaherah Service Station. The plaintiff secretly misappropriated large amounts of this defendant, put them in the secret account and operated the accounts in the same way. He has denied the partnership, but has stated that "the so‑called partnership deed was got signed by the defendant who is ignorant of English and was helpless and at the mercy of the plaintiff: The plaintiff did not invest any money and the deed is void for the above reason and for want of consideration." He has further added that two more documents typed in English were got executed by the plaintiff from him. Thereafter the quarrels and disputes continued between the parties. It is denied by him that a total sum of Rs. 87,755 has been invested by the plaintiff. All the allegations made against him by the plaintiff are vehemently denied by him. He has also referred to a suit filed by the plaintiff in Civil Court, Karachi for settlement of accounts, and hence, according to him, this suit could not lie.
5. As previously stated allegation of conspiracy has been denied by all the defendants including defendant No. 3 whose case is that on or about 7‑3‑58 he was offered a licence to run the same petrol pump in succession to defendant No. 2. and it was accepted by him. According to him defendant No. 2 was the licensee of this petrol pump as a sole proprietor and was running it as Shaherah Service Station. Thereafter he entered into an oral agreement with defendant No. 2 for Rs. 17,500 for the transfer of assets, fittings, and furniture, etc., of the said concern. On these pleadings following issues have been raised:
(1) Is plaintiff's suit not maintainable and is it barred under O. 11, rule 2, C. P. C.
(2) Is suit against defendant No. 3 barred by limitation
(3) Did plaintiff in all pay Rs. 57,068‑11‑3 on behalf of defendant No. 2 to Rokaria Brothers If so, was it paid on promise of defendant No. 2 that plaintiff would be taken as a partners
(4) Whether defendant No. 2 was the sole licensee and as such had no authority to admit plaintiff in partnership with him
(5) Did defendant No. 2 put off execution of deed, of partnership
(6) Did plaintiff pay amounts by cheques drawn by him to defendant No. 1 under the licence Its effect
(7) Was plaintiff's overall investment in the business Rs. 87,755 till 1‑12‑1957
(8) Is the Deed of Partnership void for want of consideration and/or on account of fraud practices by plaintiff on defendant No. 2
(9) Did defendants or which of them conspire against plaintiff
(10) Was licence of Shaherah Service Station cancelled by defendant No. 1 in conspiracy If so, with which other defendant or defendants
(11) Was the action in conspiracy done by defendants or any of them to injure the plaintiff's interest
(12) Are defendants or any of them liable for damages to the plaintiff
(13) What damages, if any, can plaintiff claim If, so, against what defendants
(14) What relief
My findings and reasons are as follows:
6. Issue No. 1.---Mr. Naimuddin, Advocate on behalf of defendants 1 and 3 had urged before me that suit was not maintainable and was barred under the provisions of Order 11, rule 2, C. P. C., because the cause of action in both the suits is same and hence this suit could not lie. I may repeat here again that the plaintiff has filed a suit (No. 1727/58) in Civil Court, Karachi for accounts of a dissolved partnership (vide Exh. 13). According to him, cause of action in both the suits is the same. In the present suit, allegations have been made by the plaintiff that goodwill has been destroyed, licence has been cancelled and possession taken over of everything at the petrol service station as a result of conspiracy. Relief in Suit No. 1727/58 is referred to in paragraph 23 of its plaint Exh. 13. For this purpose he had referred me to several paragraphs of the two plaints in both the suits, and had argued that same statements of facts have been pleaded and as this relief has not been claimed by the plaintiff in his previously instituted suit it was not open to him to claim to this relief in the present suit. He had relied upon several Indian authorities in support of his views. Provision of Order II. rule 2 are very clear. It lays down that every suit must include the whole of the claim to which the plaintiff is entitled in respect of the same cause of action. Thus the question of applicability of Order II, rule 2 will arise only when the cause of action in both the suits is the same. One of the tests to consider whether there was identity of cause of action in the suits is whether the same evidence can be led in proof of the claim. If the evidence to support the two claims is different then the cause of actions would be different. In the previously instituted suit plaintiff has prayed for accounts of a dissolved firm. In order to succeed in that suit plaintiff has to lead evidence that the firm has been dissolved, the amount is invested by him and accounts have not been settled. In the present suit he has claimed a certain definite amount by way of damages as a result of conspiracy entered into by all the defendants the consequences of which was the destruction or loss of partnership business and the cancellation of licence in favour of defendant No. 2 by defendant No. 1. P L D 1955 Dacca 96 supports the plaintiff's case. It was urged on his behalf by his Advocate Mr. Moulvi that the same matter can give rise to more than one cause of action. According to him cancellation of licence in favour of defendant No. 2 by defendant No. 1 resulted into (1) dissolution of partnership (2) illegal cancellation, and (3) fresh issuance of licence in favour of defendant No. 3 as a result of conspiracy alleged in the plaint. He‑ had also relied upon cases reported in P L D 1950 Dacca 575 (sic); Said Muhammad Khan v. Alam Sher Khan (P L D 1959 Azad J & K 27), Bhimangouda v. S. I. Patil (A I R 1960 Mysore 178), Shridhar Mahadeo v. Godulal Jethamal (A I R 1940 Bom. 20) and Sheokumar Singh v. Beth an Singh (A I R 1940 Pat. 76). For all these reasons I decide this issue in favour of the plaintiff,
7. Issue No. 2.‑This issue does not arise as the objection regarding limitation was given up and not pressed on behalf of defendant No. 3.
8. Issues Nos. 9, 10, 11, 12 and 13.‑The facts of the case have been described in detail in order to appreciate all the points involved in the matter and also to arrive at the correct decision. In brief, the case of the plaintiff is that a licence was issued in favour of defendant No. 2 by defendant No. 1 and he was running the petrol pump business in the name of Sahaherah Service Station in partnership with hokaria Brothers in the year 1955, Some dispute arose between the parties as a result. Of which latter retired in March 1957. Thereafter fresh licence was issued in favour of defendant No. 2 to run this business as its exclusive proprietor. Some money was required to be paid to Rokaria Brothers and as defendant No. 2 had no money available, plaintiff made this payment to them on behalf of defendant No. 2 on the understanding that he would be taken up as partner and such promise was given to him. Drafts of partnership deed were prepared but defendant No. 2 would not agree for one reason or tile other till 1‑12‑1957 when the final draft was approved by him and it was executed between the parties. Plaintiff also contends that he made further investments and when defendant No. 2 found that he was secure he tried to misbehave And ultimately succeeded in leaving his licence cancelled by defendant No. 1 which was issued in favour of defendant No: 3 as a result of conspiracy between all the defendants. This is his case in nutshell. He has narrated all these facts in his evidence. There is no direct evidence to support him regarding the conspiracy which is denied by all the defendants in their written statements as well as in the evidence of the witnesses examined on their behalf. Onus of proof was upon the plaintiff. He has merely relied upon certain circumstances in order to prove the conspiracy. According to him the licence was cancelled by defendant No. 1 because he had at one time intended to issue the same licence in favour of Adam, then Japanwala and lastly he succeeded when this licence was issued to defendant No. 3. There appears no privity of contract between plaintiff and defendant No. 1. Licence was issued by defendant No. 1 in favour of defendant No. 2 as its sole proprietor. Under the terms and conditions of this licence, it is alleged by defendant No. 1, that defendant No. 2 could not enter into partnership with anybody. Plaintiff's case on this point is that defendant No. 1 was informed about this partnership and in fact its copy was sent to it. This is denied on behalf of defendant No. 1. There is no proof in support of plaintiff's version on this point that either defendant No. 1 was orally informed about this partnership or the copy ‑of the deed of partnership was sent to it. It was urged on behalf of the plaintiff that no objection was taken by defendant No. 1 when defendant No. 2 had entered into partnership with Rokaria Brothers. This is hardly a circumstance or argument which could be taken by the plaintiff in support of his case. If the terms of the licence are very clear, and there is no ambiguity about it, then a licensee is barred from taking anybody as partner. Case of defendant No. 1 is that defendant No. 2 was not running this petrol service station satisfactorily for various reasons mentioned in the written statement and so it took action under the terms and conditions of the licence and consequently cancelled it. When defendant No. 1 had power to cancel the licence, it is done in the ordinary course of business. There is no evidence to prove the conspiracy. After its cancellation defendant No. 2 bad filed a criminal case against some of the officers of defendant No. 1 and after its complaint was discharged he had approached this Court in revision. This factor strongly goes against the plaintiff. Even if his version is accepted it was the firm which had been affected. It was urged on behalf of the plaintiff that defendant No. 2 has been paid corrupt money by defendant No. 3 for getting his licence cancelled and having the same issued in his favour. The plaintiff has failed to prove the legal wrong. Secondly he has merely claimed a fixed amount of rupees one lac by way of damages but no details have been given by him. No evidence has been adduced to show or prove the details of damages. Even if his case is taken at its best, i.e., he had entered into partnership with defendant No. 2 to run the petrol pump in the name of Shaherah Service Station. on the basis of the licence which was issued by defendant No. 1 in favour of defendant No. 2, I find that its cancellation would not give cause of action to the plaintiff. It is the defendant No. 2 who alone has suffered, if at all, on account of this cancellation. For all these reasons I decide these issues against plaintiff:
9. Issues Nos. 3, 4, 5, 6 and 7.‑No finding on these issues is necessary in view of my finding on issues Nos. 9 to 13. Apart from this fact, the plaintiff has filed separate suit in civil Court referred to above. All these points are directly in issue in that suit which is pending in the civil Court. I have already pointed out that even if the plaintiff's case is taken at its best, i.e., there was a partnership between him and defendant No. 2 (which has been denied by the latter), the cancellation of licence by defen dant No. 1 in favour of defendant No. 2 will not give any cause of action to plaintiff to file this suit.
10. Issue No. 14.---Suit is accordingly dismissed with costs.
K.B.A. Suit dismissed.
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