' This is a revision petition arising out of an objection petition filed by the petitioner's firm in an execution proceedings.
2. The facts are that the shop in dispute situated on Sheikhupura Road, Gujranwala was rented out to one M. Rafiq (judgment-debtor) by the respondent on a monthly rent of Rs, 75 wherein he started his partnership business. The respondent filed an eviction petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, against said Mohammad Rafique on 3rd December, 1975 before the learned Rent Controller, which was resisted by M. Rafiq. The learned Rent Controller after recording the evidence of the parties and hearing the arguments advanced by their counsel accepted the eviction petition and directed the said tenant to hand over the vacant possession of the demised premises vide order dated 8th December, 1976.
3. Mohammad Rafiq (judgment-debtor) being dissatisfied, assailed the aforesaid ejectment order of the learned Rent Controller before the lower Appellate Authority who up-holding the said ejectment otter dismissed the appeal vide his order dated 14th November, 1978. A second appeal was also directed against the aforesaid order of dismissal in the High Court which also met the same fate but my learned brother Mohammad Ilyas, Judge, who decided that Second Appeal vide his judgment dated 28th November, 1978 concluded as under :-- "As there is no force in this appeal it is dismissed in limine.
' Towards the close of his argument the learned counsel for the appellant submitted that since the appellant was doing business at the premises in dispute and he will need a long time to make suitable alternative arrangements, he may be allowed sufficient time making this arrangements. I, therefore, allow him 3 months lime to vacate the premises in dispute."
4. Against the dismissal of S. A.
0. Mohammad Rafique (judgment-debtor) applied for Leave to Appeal in the Supreme Court and it is stated by the learned counsel for the petitioner that the same has been refused recently by the Supreme Court. It is not the end of the story here. As I have stated above that Mohammad Rafiq (judgment-debtor) has been carrying on partnership business in the name of Messrs M. Rafiq and Company, a registered firm since 1975 in the demised premises, he brought forward the said firm through his brother Mohammad Saeed, a partner of the firm, who firstly obstructed and resisted the execution of warrant of possession and after doing that, on 11th March, 1979 he came forward with an objection petition under Order XXI, rule 97 of Code of Civil Procedure on 27th June, 1979 praying that the execution of the ejectment orders be dismissed. The written reply of the said objection petition was filed by the present respondent on 30th June, 1979. The learned Rent Controller after hearing the arguments and perusing documents placed on the record by the objector firm came to the conclusion that the objection petition was intended to prejudice decree- holder and being based on naked mala fides was not only premature but was liable to be dismissed. He therefore, dismissed that objection petition with no order as to costs.
5. The objector firm assailed the aforesaid order of the learned Rent Controller in appeal where learned Additional District Judge maintained the order under appeal and dismissed the appeal, being without any merit and substance in limine. As against those orders, the present revision has been directed in this Court by the petitioner's firm.
6. I have heard the learned counsel for the parties and perused the relevant record placed on the file. The learned counsel for the petitioner strenuously argued that the orders passed by the lower Courts are misconceived and as the objection was filed in response to a plaint filed by the respondent, the objection petition should not have been disposed of as premature. He further contends that the Rent Controller did not inquire into the matter with the result that requirements of Order XXI, rule 97, Code of Civil Procedure have not been complied with. He further argued that the petitioner firm is holding the shop in dispute in its own account and the petitioner was not bound by the impugned ejectment order passed against Mohammad Rafique one of the partners of the petitioner firm. In support of this contention photo copies of transfer deed dated 12th May, 1975 and acknowledgment of Registration of firm dated 8th November, 1975 along with certain photo copies of receipts were placed on the file. According to these documents the petitioner firm consists of 3 partners namely Mohammad Saeed, Mohammad Rafique, real brothers and Ghulam Muhammad, the father of other partners with equal shares and was registered in the name of Messrs Mohammad Rafique & Company, Sheikhupura Road, Gujranwala under the Partnership Act with the Registrar of Firms.
7. The sole question which arises for adjudication in this revision petition is that whether the objector firm could resist or obstruct the execution proceedings claiming in good faith to be in possession of the demised premises on his own account and as such was entitled to any legal protection against the said execution proceeding, under Order XXI, rule 99, Code of Civil Procedure.
The answer to this question revolves around the determination of the following two allied questions :-
(1) Whether a firm formed under the Partnership Act, 1932 is a legal person distinct and separate from its component.
(2) Whether a tenant, who enters into a partnership business with his co-partners and allows the firm to carry its partnership business in the demised premises, transfers his tenancy rights to such firm.
8, Section 4 of the Partnership Act, 1932 lays down that "partnership" is relationship between persons who have agreed to share the profits of a business carried on by all or any of them acting for all, and the persons who have entered into relationship are collectively called a "firm". The point which needs consideration therefore, is whether a firm is a legal entity quite separate and distinct from its members or partners forming it.
9. There is no definition of the word "person" in the Partnership Act. The General Clauses Act, 1897, however, by section 3 (42) defines that "person" shall include any company or association or body of individuals whether incorporated or not. The "firm" is not a company but certainly an association or body of individuals. However, the definitions contained in section 3 of the General Clauses Act, 1897 apply when there is nothing repugnant in the subject or context. Now it is to be seen whether there is anything repugnant in the subject of Partnership law, which will exclude the application of that definition to section 4 of the Partnership Act. This point was considered in Bhagwanji Morarji Goculdas v. Alembic Chemical Works Company Ltd. (1) where it has been laid down by the Privy Council that law prevalent in this sub-continent has not given legal personality to a firm apart from the partners. In Dulichand Lexminarayan v. Commissioner of Income-tax, Naghpur (2) it was observed as under :- "It is clear from the foregoing discussion that the law, English as well as Indian, has for some specific purposes, some of which are referred to above, relaxed its rigid notions and extended a limited personality to a firm. Nevertheless the general concept of partnership, firmly established in both systems of law, still is that a firm is not an entity or 'person' in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm. In other words, a firm name is merely an expression, only compendious mode of designating the persons who have agreed to carry on business in partnership.
' In these circumstances to impart the definition of the word "person" occurring in section 3 (42) of the General Clauses Act, 1897, into section 4 of the Indian Partnership Act will, according to lawyers, English or Indian, be totally repugnant to the subject of partnership law as they know and understand it to be. It is in this view of the matter that it has been consistently held in this country that a firm as such is not entitled to enter into partnership with another firm or individuals."
10. My view, therefore, in the matter referred to above, is that though the firm may possess certain characteristics of a legal "person" but it is only a collective name of its components and cannot be deemed or considered to be a legal "person" distinct and separate from its partners.
11. As regards the second question, it is to be ascertained from the partnership deed placed on the record as to whether the premises I question was ever brought by original tenant namely Mohammad Rafi (judgment-debtor) into the partnership, so as to make the tenancy held by all the partners of the petitioner firm. The document placed on the file does not speak a word about it. It simply mentioned about the share of the partners, way of keeping of accounts and distribution of profit, etc. It does not even mention that partnership business will be carried (1) PLD 1948 P C 73(2)
AIR 1956 SC 354 on at the demised premises held by Mohammad Rafique (judgment-debtor) on rent. It therefore, can safely be concluded that the demised shop was not brought into the firm as part of the partnership and accordingly the said shop in dispute continued to be under the sole tenancy of Mohammad Rafique (judgment-debtor), and was never considered to be the property of the petitioner firm.
12. The mere fact that Mohammad Rafique (judgment-debtor) being a' partner allowed the partnership business to be carried on in the demised premises did not itself amount to divesting himself of the legal possession of the shop in question in favour of the firm. The parting with legal possession should be such as to create an interest in immovable property, c a right in rem, in all the partners, so as to create in them unity of title, unity of interest, unity of possession so that all the partners become co-lessees. Furthermore, parting with the possession and letting the firm into use as tenant of the demised premises should not be readily construed particularly in cases of premises subject to Rent Restriction Laws. I am therefore, firmly of the view, that the demised premises was never transferred to the petitioner firm and it continued to remain under the sole tenancy of Mohammad Rafique (judgment-debtor) in the eye of law despite the fact that the petitioner firm has been carrying on the partnership business in the demised premises. The possession of the petitioner firm was not independent but was subject to the will and pleasure of Mohammad Rafiq (judgment-debtor) as long as the partnership continued and tenancy rights were not terminated.
13. A reference of section 14 of the Partnership Act may be of great help in coming to a conclusion regarding the property of the firm. According to section 14 of the Partnership Act subject to the contract between the partners, the property of the firm includes all property, rights and interest in property originally brought into the stock of the firm or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm. This cannot be interpreted from this section that a property is partnership property if it is used for the purposes of the partnership business. Lindley (Law of Partnership, 12th edition page 365) mentions as under :- "It by no means follows that property used by all the partners for partnership purposes is partnership property. For example, the house and land in and upon which the partnership business is carried on often belongs to one of the partners only, either subject to a lease to the firm, or without any lease at all. So it sometimes happens, though less frequently, that office furniture and even utensils in trade are the separate property of one of the partners, subject to the right of the others to use them as long as the partnership continues. Lf, however, a partner brings such property into the common stock as part of his capital it becomes partnership property, and any increase in its value will belong to the firm the only true method of determination as between the partners themselves what belongs to the firm, and what not, is to ascertain what agreement has been come to upon the subject."
14. There is nothing on the record to suggest that respondent/landlord, ever accepted or took the petitioner firm as his independent tenant. On the basis of the above discussion, it cannot be held that Mohammad Rafique (judgment-debtor), entering into the partnership business ever passed any interest in the premises in question to the objector firm so as to clothe it with the status of a tenant or sub-tenant of the shop in dispute. Reliance is placed on Motal Bai v. Abdul Aziz (1).
15. The finding of the learned subordinate Courts to the effect that the objection petition has been submitted collusively at the instigation of Mohammad Rafique (judgment-debtor) in order to defeat the execution and operation of ejectment orders passed in favour of the respondent is not arbitrary but in fact is based upon appreciation of facts and law. The petitioner firm, as stated above cannot be deemed to be a legal person and distinct and separate from Mohammad Rafique (judgment-debtor) its partner.
16. The upshot of the above discussion is that the petitioner has no right to claim any protection under Order XXI, rule 99, Code of Civil Procedure, and cannot be held to be a person claiming in good faith to be in possession of the demised shop in his own account. I hold that the petitioner is still holding the demised premises on account of Mohammad Rafique (judgment-debtor) at whose instigation the resistance and obstruction was occasioned without any just cause in the name of the petitioner. The application being false and vexatious, has no merit and the same is hereby dismissed with costs. I also order Mohammad Saeed the mover of the objection petition on behalf of the petitioner to pay Rs, 500 as compensatory costs to the respondent.
(1) PLD 1968 Kar. 635 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.