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Civil Revision No. 172 of 1956. decided on 3rd October 1957 from the order of Khan Abaid Ullah Khan, Civil Judge, 1st Class, Lahore, dated the 26th May 1956.
S. 69-Should be strictly construed.
A provision of law of the nature of section 69 of the Partnership Act, which would deprive the plaintiff of the right to sue, must be strictly construed and not lightly invoked against him.
Bajranglal Maniram v. Anandilal Ramchandra A I R 1944 Nag. 124 and Chhotelal Nanakram Gujrathi v. Gopaldas Gulabdas Baniya A I R 1940 Nag. 78 ref.
S. 115-High Court will interfere on grounds mentioned in S. 115-No revision lies, if decision of lower Court is erroneous.
High Court can only interfere in revision under section 115 of the Civil Procedure Code on one of the grounds mentioned therein. The High Court will not interfere in revision merely because the finding of lower Court on an issue is erroneous.
A. R. Sheikh for Petitioner.
Aftab Hussain for Respondent.
Date of hearing: 3rd October 1957.
The facts leading up to this Civil Revision are that on the 1st of May 1954, Ghulam Rasul Shah respondent filed the present suit against Allah Bakhsh petitioner for the recovery of Rs. 3,000 on the basis of six promissory notes Exhs. P. 1 to P. 6, executed by the defendant in his favour. The petitioner contested the suit on the ground that the pronotes were executed during the course of, and in connection with, a partnership entered into between the parties, and that as the partnership in question had not been registered, the suit was barred by section 69 of the Partnership Act. He raised a further plea that the firm known as Messrs. Allah Bakhsh & Sons. of which he was a member, was also' a partner with the plaintiff and that the other partners of the said firm were consequently necessary parties.
The following issues were framed :-
(1) Are Messrs. Allah Bakhsh & Sons necessary parties to the suit
(2) Is this suit not entertainable in view of the provisions of section 69 of the Partnership Act
Both the issues were decided against- the petitioner, who has now come up to this Court in revision.
The main question involved in this revision is that of the applicability or otherwise of section 69 of the Partnership Act, the relevant subsection of which runs as under :-
"69. (1) No suit to enforce a right arising for a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as 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".
In the present case Mr. A. R. Sheikh, who argued the revision at great length, was compelled to concede that in the plaint there is no reference to any partnership, the plaintiff suing in his own personal capacity and the defendant being similarly sued as an individual and not as a partner in any firm, and further, that the promissory notes Exhs. P. 1 to P. 6 forming the basis of the suit make no reference to the alleged partnership. In such circumstances it cannot by any stretch of imagination be argued that the plaintiff is suing as a partner in a firm against any person alleged to be or to have been a partner in the firm. Moreover, a provision of law of the nature of section 69 of the Partnership Act, which JA would deprive the plaintiff of the right to sue, must be strictly construed and not lightly invoked against him. I am unable to accept the contention of Mr. Sheikh that it is open to the Court to go behind the plain wording of the plaint and to hold the plaintiff to be debarred from suing if it is subsequently found that the claim, though not based directly on any partnership transaction, is ultimately con nected with such a transaction. From the petitioner's point of view the present case is on an even weaker footing than that discussed by the learned Civil Judge, namely, Bajranglal Maniram v. Anandilal Ramchandra (A I R 1944 Nag. 124). In that case the plaintiff, while suing primarily on the basis of accounts settled between the parties, prayed in the alternative for dissolution of the partnership and settlement of a partnership accounts if it should be held that there was no settlement. In the present case, on the other hand, no relief based on the partnership accounts is sought, the partnership being not even mentioned.
Mr. Shaikh relied on Chhotelal Nanakram Gujrathi v. Gopaldas Gulabdas Baniya (A I R 1940 Nag. 78), but the reason for his doing so is not clear. The question decided in that case was merely that the language of subsections (1) and (2) of section 69 is wide enough to cover suits relating to a dissolved firm and that it is not essential that the firm should actually be in existence on the date on which the suit was instituted. The plaintiff sued in respect of money which he alleged was due to him on the basis of transactions in an unregistered partnership, while in the present case the plaintiff sues on the basis of certain promissory notes and not on that of a partnership.
I have no hesitation in holding that section 69 of .the Partnership Act does riot bar the present suit, and there is also another aspect of the matter to be considered. This Court can only interfere in revision under section 115 of the Civil P. C. on one of the grounds mentioned therein. In the present case the petitioner was totally unable to show either that the Court below exercised a jurisdiction not vested in it, failed to exercise a jurisdiction which did vest in it, or acted in the exercise of its jurisdiction illegally or with material irregularity. Even if the finding of the learned Civil judge on issue No. 2 be held to be erroneous, that fact alone is no ground for interference in revision.
Similarly, I find no reason to interfere with the decision of the trial Court on issue No. 1. The petitioner's case is that he signed the pronotes in dispute merely as an agent of the firm Messrs. Allah Bakhsh & Sons, which firm was a partner with the plaintiff. Whether or not this plea has any foundation, it is clear that if the promissory notes are held to have been duly executed, the plaintiff will be entitled to a decree against the defendant, and Mr. A. R. Shaikh is in error in arguing that no decree can be passed without imp leading Messrs. Allah Bakhsh & Sons.
For the above reasons I hold that there is no force in the petition, which is dismissed with costs.
K.M,A. Revision dismissed.
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