KHALID ALI Z. QAZI, J.---This is a suit for dissolution of partnership and rendition of accounts filed by plaintiffs Abdul Ghani & others sons and daughters of Shaban in respect of certain immovable properties consisted of Survey Nos: 254, 255, 264, 288, 291, 292, 299, 300, 482, 483, 484, 485, 486, 496, 497, 513, 514, 516 and 791, Deh Thano, Tappo Thano Taluka and District Malir, Karachi. All such properties have already been mutated in the names of the plaintiffs and defendants according to their shares. The plaintiffs have prayed for judgment and decree to the effect that: "(a) to direct the defendants Nos.1 and 2 to tender the account from the very inception of the tenancy of defendant No, i,e, Messrs Shaban Corporation, Suit No,1-4, D/6, Block-7 & 8, Shaheed- eMillat Road, Karachi from 10-4-1984.
(b) To dissolve the partnership dated 10-4-1984.
(c) To appoint a Receiver.
(d) Cost of the suit.
(e) Any further relief in the circumstances of the case this Honourable Court may deem fit and proper."
2. The case of the plaintiffs as set-up in the plaint is that out of the above properties the defendants Nos.1 and 2 proposed that the properties being Survey Nos.264, 288 and 791 measuring 7 acres and 3 ghuntas situated in Deh Thano, Tappo Thano, District Malir, Karachi be pooled for purpose of launching a project namely Shaban Town, under the name and style of Messrs Shaban Corporation and the defendant No,9 to be run as a partnership Concern. In addition to the investment of immovable properties as mentioned above, the parties contributed cash amount according to their shares in the partnership i,e,Rs,20,000 to be contributed by the male members and Rs,10,000 by the female members of the family and a partnership Deed dated 10-4-1984 has been reduced in writing and duly registered with the Registrar of Firms Karachi and according to such partnership deed each party became partner in partnership business according to their shares in the immovable properties and cash contribution. On 10-3-1984, in order to run the business of Messrs. Shaban Corporation the plaintiffs Nos.1 and 2 and predecessor of plaintiffs Nos.3 to 13 Mst. Taj Bibi and defendants Nos.2 to 8 have executed a registered General Power of Attorney in favour of defendant No,1. The defendants Nos.1 and 2 for launching a project i,e, Shaban Town obtained an office on Pugri basis. The defendants ,Nos.1 and 2 were paying money out of the proceeds against receipt the accounts of which are kept by them, but the accounts of the firm were never made available to the plaintiffs in spite of repeated requests. The defendants Nos.1 and 2 launched the project after obtaining necessary permission from the relevant authorities and made crores of rupees but never paid a single penny to the plaintiffs nor tendered any accounts of the business. On account of failure of defendants Nos.1 and 2 to tender the accounts of the business concern, the plaintiffs served a legal notice on them at their business address, but they refused to accept it. The plaintiffs due to loss of faith are no more interested to continue the partnership and seek dissolution of partnership.
3. The cause of action is shown to have arisen firstly on 10-4-1984 when the partnership was entered into between the parties and on 3-10-2002 when the legal notice was served upon the defendants and since then it continues till the accounts are settled and partnership is dissolved.
4. In response to the summons issued by this Court, defendants filed their written statement through their attorney defendant No,1, wherein it is stated that the said project was not only proposed by the defendants Nos.1 and 2 but it was proposed by the plaintiffs and defendants as all were running short of. Money. It is submitted that defendants Nos.1 and 2 are young, educated and well conversant with the management of business and accounts and have initiative to work for better prospects. It is admitted that the plaintiffs and defendants are the partners of the firm, but added that there is a great difference between sleeping partner and active partner and as such they cannot be at par with each other. It is denied that the accounts of the firm were not made available to the plaintiffs and they were paid by the defendants more than their share. It is also admitted that by mutual consent of the partners who are real brothers and sisters appointed defendants No,1 who is an educated person and Advocate by profession, to manage to dispose of few acres of lands for the prosperity of entire family. It is further submitted that defendant No,1 gave up his legal profession and struggled hard in view of the worst financial condition, of the family. It is further stated in the written statement that the market value of the said land is much less than the value as estimated by the plaintiffs in the plaint and they were made more than their shares, being real brother and sisters proper receipts have not been taken regularly, which does not mean that the plaintiffs have been deprived of their legal shares. It is submitted that the total land of the project comprising of 7 acres and three ghuntas, and out of the above land only 3.48 acres have been utilized. The breakup of the utilized land is as under:-- "(a) Plots of 120 sq. Yds =12
(b) Plots of 8-0 sq. Yds =23
(c) Commercial plots of 80 sq. Yds =20 A. Land utilized 13,440 sq. Yds.
B. Land utilized 1840 sq. Yds.
C. Land utilized 1600 sq. Yds. Total land utilized 16,880 sq. Yds."
5. It is denied that the defendants refused any notice issued by this Honourable Court. It is submitted that late Taj Bibi plaintiff No,3 had received approximately double of her share and she has issued receipt of Rs,545,000 and Abdul Ghani has issued receipt of payment of share Rs,1,87,000 and Mrs. Habib had issued receipt of Rs,62,000, these payments are in addition to more payments for which they have not issued receipts as such all the plaintiffs have taken their due shares out of sale proceeds. It is further stated that the plots in question were sold at the rate of Rs,1000 per sq. Yds. Commercial plots, although the rates fixed by KBCA/City District Government were a little more but the plaintiff had to sell the plots on the above said rates as no purchasers were available to purchase the plots more than the said amount. It is also submitted that the defendants Nos.1 and 2 being the acting directors of the company drawing only Rs,12,0000 each per month inclusive conveyance and little remuneration and Rs,10,000 for miscellaneous expenses of the company since establishment of project in 1993. It is denied that any instalment against the plots are due as the deal of the plots have almost completed and dissolution of partnership at this stage may create severe hardships to the purchasers of the plots and may disturb the further dealings in progress. It is specifically submitted that the plaintiff No,1 is uneducated person and is under influence of plaintiff No,2, who is real sister of defendants Nos.1 and 2 and plaintiff NO.2 is absolutely under influence of her husband who is instigating the plaintiff No,2 to institute this case only for reacting harassm ent for getting maximum benefits from in-laws of the defendants. It is also denied that no cause of action has accrued in favour of the plaintiffs against the defendants and prayed for dismissal of suit with compensatory costs.
6. In order to prove the case, the plaintiffs examined Mohammad. Azhar Baloch, the attorney of the plaintiffs and son of the plaintiff No,2, who filed his affidavit-in-evidence as Exh.1 and virtually reiterated the contents of the plaint and asserted that the. Averments made in the written statement are to be strictly proved by the defendants Nos.1 and 2 and also examined plaintiff No,3 Mohammad Shoaib son of late Taj Bibi the predecessor of plaintiffs Nos.3 to 13 who filed affidavit- in-evidence as Exh.2 both were cross-examined. The affidavit-in-evidence filed by Mohammad Azhar Baloch Exh.A General Power of Attorney has also been marked as Exh.B photocopy of statement of alleged payment has been produced as Exh.B and photocopy of statement of payment as Exhs.0 and D. In cross-examination it was suggested that partnership Deed can only be dissolved by three contributing male members. The notice was given to the defendants through Advocate for the plaintiffs. It was denied that the shares of all the partners were paid. The witness was asked that he is living in the house of his maternal grandmother, which is denied and stated that he is living in his father's house. Mohammad Shoaib, the plaintiff No,3, was also cross- examined and he denied the payment of his mother Taj Bibi, predecessor of plaintiffs Nos.3 to 13 and also denied suggestion that he was paid Rs,2,60,000.
7. The defendant No,1 filed his affidavit-in-evidence as Exh.D. The photocopies of Annexures were not exhibited, as original were not produced. He reiterated the contents of written statement. In para-5 of affidavit-in-evidence he introduced a new payment of Rs,2,60,000 to Mohammad Shoaib, plaintiff No,3, and as such he was examined. In para.7 of the affidavit-in-evidence he stated that as Director the defendant No,1 and defendant No,2 as Acting Director were drawing Rs,12,000 each per month and in addition to the remuneration a sum of Rs,10,000 towards expenses per month since 1993. He further stated in affidavit-in-evidence that he received Rs,8,00,000 from Mr. Sarwar Shaikh on account of investment of Rs,5,00,000 and Rs,3,00,000 of service charges from incorporation till 1998 and rest of the averments are repeated from the written statement.
8. In cross-examination the following admissions are made by the defendant No,1; He is not on roll of Advocates now; Notice under Order XII rule 12, C.P.C. Admitted to have been received; Partnership Deed admitted; Sisters are uneducated and brothers are under Matric; Partnership Deed first denied having been got prepared by him then admitted that Partnership Deed was drawn under instructions of defendants Nos.1, 2 and 4; Admitted that the clauses of Partnership Deed were not explained to the other members; Admitted that in Para-5 of Partnership Deed share of male members were 14 Paisa and female members are 5 Paisa; Admitted that according to Partnership Deed the shares of male members are 12 1/2 Paisa and 6- 1/2 for sisters; Business started from 1993-94; He admitted that there is no other business except the partnership; He admitted that office of partnership is being used for computer network; He admitted 3 visiting cards Exhs.0/4, 0/5 & 0/6 which show that the premises of office is used by Ghulam Murtaza, Ghulam Sajjad and Ghulam Habib Shaban for their business; No contribution is made to the partnership for using premises; The telephone mentioned in the cards are of partnership business but no payment is made to the partnership business; Telephone bills and Electric charges, mentioned in affidavit-inevidence are correct and the payments are made, by the partnership; Brothers and nephews whose cards produced did not contribute to the partnership; Witness admitted there 4were no minutes recorded of meeting of partnership; It is admitted that no permission was obtained from other partners for running other business; The witness stated that from 1997 till now i,e, 14-2-2005 he has not posed himself as an Advocate; He admitted that Safar Jamal lodged a case under sections 468, 471, P. P.0 . The F. I. R. No, 96/2004; He admitted that Bail application was moved by him and in Para-4 of Bail Application he stated that he is an Advocate of KBA; The witness admitted that the male members have invested Rs,20,000 and female members Rs,10,000 which was received by him; The witness shows his ignorance whether he opened Bank account of company of the account so received; He admitted that no register of account in the office as such cannot be produced; After the Preliminary Decree the office used only for getting mail; The witness admitted that he has not produced any copy of the receipt of monies received from plot holder; .
Witness produced certain account books; Witness admitted that Register No,7, Exh.7, pertains to September, 1993 to June, 1994 accounts; Other Register pertains to the accounts upto 1999 and these accounts prepared by accountant Hyder Abbas; Hyder Abbas left service in 1999 or 2000; No accountant appointed after Hyder Abbas; Account Books are not signed by the Accountant; The witness produced 12 Register as Exhs.1 to 12; -- The witness admitted that on Exhs.1 to 12 there are no signatures of the witness, accountant Hayder Abbas or of any concerned person; The witness admitted that these Registers are in one handwriting and in one ink; The witness shows his ignorance about Exhs. 1 to 12 whether these are new register or old; The witness denied that these Registers are prepared now; The witness admitted no reconciliation accounts were prepared as he is not aware; The witness shows his ignorance about maintaining the accounts of firm from 1984 till 93; The accounts of Rs,1,60,000 were received in 1984 from the parties cannot be prepared; The witness further admitted that the accounts from July 1999 were not maintained; The witness admitted that defendants Nos.1 and 2 have drawn loan of Rs,8,60,000 and Rs,9,50,000 respectively; The witness admitted that no permission or consent of the plaintiffs taken for obtaining above loans; He clarified that it was not loan and wrongly mentioned in books as loan; The witness admitted that he and defendant No,2 drawing Rs,14,000 per month each from 1994 and thus total amount drawn by defendants Nos.1 and 2 comes to Rs,47,94,000 over 14 years; The witness had shown his ignorance whether income tax returns were submitted or not; The witness admitted that Rs,7,50,000 was paid. To Faiz Mohammad Palari who has given his office to the company but this account was only for the furniture and specially denied that no Pugri was paid to Mr. Palari but further payment of Rs,7,50,000 is shown in accounts having been paid to Mr. Faiz Palari; The witness admitted that the receipts of payment were not confronted to the witness of the plaintiffs; The witness admitted that various receipts of payments made through cheques; The witness admitted that the female members are illiterate and Pardanashin ladies; First the witness stated that the plaintiffs are illiterate and females are Pardanashin and they have not any bank account but thereafter stated he is not aware but no bank reconciliation statement produced to prove the encashment or cheques alleged to have been paid to the plaintiffs; The witness failed to produce file of KDA and KBCA in respect of Shaban Corporation as the plaintiff No,1 took all the files three years ago; The witness admitted that he received instalments form the allottees; The witness admitted that the affidavit-in-evidence was filed after the incident of taken away the files by the plaintiff No,1; The witness admitted that Photostat of documents filed with affidavit-in-evidence in absence of original documents; The witness admitted Rs,7,50,000 to Mr. Faiz Palrai before 30-6-1995 on account of furniture; The witness shows his ignorance about further payment of Rs,7,50,000 to Faiz Palari. He has returned Rs,8,00,000 to Mr. Sarwar on account of investment and service charges; The witness admitted that no partner can be inducted without permission of all the partners; The witness further admitted that no permission taken in writing from the plaintiff to induct Mr. Sarwar Shaikh as partner in partnership; The witness further admitted that no notice of induction of Mr. Sarwar as partners was given to Registrar of firms; The witness admitted that he has no proof of induction of Mr. Sarwar as partner; The witness admitted that he has not produced any original document as per list given in the affidavit-in-evidence; The witness admitted that he has not produced documents in respect of allotment of plots and receipt of payment received from the allottees; The witness admitted that the value of the plots comes to Rs,2,06,70,260; The witness denied the value of project was Rs,6,65,00,000; The witness admitted that the shares of the plaintiffs amounting to Rs,1,62,50,000 was not paid to the plaintiffs.
9. I have heard Mr. Mubarak Ahmed Bar-at-Law, learned counsel for the plaintiffs and Mr. Syed Ashfaq Hussain Rizvi learned counsel for the defendants and with their able assistance examined the record and evidence produced by the parties.
10. Mr. Mubarak Ahmed learned counsel for the plaintiffs has reiterated the same facts as stated in the plaint, affidavits and counter-affidavits filed by the parties and evidence of the parties, and argued that plaintiffs Nos.1 and 2 and predecessor of the defendants Nos.3 to 13 Mst. Taj Bibi and the defendants are legal heirs of late Shaban son of Shamal, who left number of properties which we;e duly mutated in the name of the parties. He contended that in this suit preliminary decree was passed on 14-4-2004, whereby the partnership firms was dissolved with effect from 23-12- 2002 and Nazir of this Court was appointed as Commissioner/Receiver in respect of the assets and properties of the partnership firm and to carry out investigation and inquiry including the receivable and to determine the share of each of the partner. Nazir was further directed that after taking accounts from all the partners to determine their respective entitlement in terms of partnership deed and to record evidence. He contended that against the preliminary decree dated 14-4-2004 the defendants filed H.C.A. No,94/2004, which was dismissed in limine. The Nazir recorded the evidence and submitted his report dated 2-8-2007, wherein share is determined as per partnership deed. According to which male members have double share and female members have single share which position was admitted by both the parties. He further contended that despite repeated opportunities to defendant No,1 he failed to produce documents of the accounts and lay out plan in respect of the partnership firm, therefore, the Nazir could not prepare the accounts of partnership firm.
11. Mr. Mubarak Ahmed, learned counsel for the plaintiff further submitted that defendants admitted in their written statement and evidence that defendants Nos.1 and 2 were conducting the affairs of partnership business as Managing Partners but they malafidely and dishonestly failed to tender the accounts to the plaintiff and in spite of direction of this Court the defendant No,1 as Managing Partner failed to provide accounts of the partnership firm, bank statement, approved plan, allotment orders of the plots and sums received from the allottees.
12. Mr. Mubarak Ahmed learned counsel for the plaintiff also argued that according to the defendants they have used only 3-45 acres of land out of 7.3 acres as such rest of 3-45 acres of land remained unutilized. The Nazir of this Honourable Court could not take over the business and assets of partnership firm as the defendant No,1 has not provided the accounts of assets of the firm. He submitted that the alleged payments made to the plaintiffs were not confronted to the witnesses of the plaintiffs and even not proved as provided under the Qanun-eShandat. Therefore, no notice of these payments can be taken. He urged that the defendants Nos.1 and 2 have admitted to have received Rs,12,000 each per month and in cross-examination defendant No,1 admitted to have received Rs,14,000 each per month without permission or consent of the plaintiffs.
The total amount on this score comes to Rs,23,84,000 each from 1994 to 2007, which means both of defendants Nos.1 and 2 dishonestly appropriated the funds of the firm which amounts comes to Rs,47,68,000. He also contended that the defendants have further shown to have spent the amounts on various account such as Electricity, Salaries to staff, Telephone General Admin.
Miscellaneous, Development, Office Rent, Advertising and publicity, payment to Sarwar Shaikh, Salaries to defendants Nos.1 and 2 and drawing of partners. He argued that all these expenses are not supported as per requirement of law under Qanun-e-Shandat and that the office premises was used by the defendants Nos.1 and 2 and their sons and nephews for their personal business but no payment has been made to the partnership firm this is to be taken notice by Nazir as Receiver. The defendants Nos.1 and 2 have further drawn Rs,40,00,000 but no other partner has been paid their share. He has further submitted that the defendant No,1 committed fraud, misrepresentation and irregularities whereby the monetary benefits obtained from the partnership.
He has prayed that the final decree be passed with a direction to the Nazir to take over the assets of business of partnership firm moveable and immovable more specifically the unutilized land and to recover the above amounts from the defendant No,1, as detailed below:-
(i) Rs.47,68,000 Drawn by defendants Nos.1 and 2 as salaries.
(ii) Rs.8,00,000 Paid to Mr. Sharwar Shaikh
(iii) Rs.40,00,000 Received by defendants Nos.1 and 2 partner share.
(iv) Rs15,80,000 Drawn by defendant No,1 as expenses.
Total Rs. 1,11,48,000 In addition to the above, the Nazir directed to obtain accounts of all the payments mentioned above from defendant No, 1 .
13. Mr. Syed Ashfaq Hussain Rizvi Advocate for the defendants Nos.1 to 9 have controverted the arguments of Mr. Mubarak Ahmed, learned Advocate for the plaintiff and reiterated the facts as stated in the written statement. Mr. Syed Ashfaq Hussain Rizvi, raised the legal objections about the maintainability of the suit on the ground that partnership was entered into between the parties on 10-4-1984 and legal notice was allegedly received on 3-10-2002 and suit was filed on 23-12-2002 therefore it was filed after six (6) year hence it is being hit by Articles 106 and 120 of the Limitation Act, (IX of 1908). He further submits that the legal notice could not be treated as fresh cause of action. He further contended that no letter of administration has been produced by the legal representatives of deceased. He also submits that one minor could not become a partner even through guardian under section 30 of the Partnership Act (XI of 1932). In support of his ease, learned Advocate has relied upon PLD 1955 Lahore 350.
14. I have given due consideration to the arguments advanced by the learned counsel for the parties, gone through the material placed on record, relevant law and the case-law cited at the bar. In this case preliminary decree was passed on 14-4-2004, whereby the partnership firm was dissolved w,e,f, 23-12-2002 and Nazir of this Court was appointed as Commissioner/ Receiver in respect of the assets and properties of the partnership firm and to carry out investigation and inquiry including the receivable and to determine the share of each of the partner. Nazir was further directed that after taking accounts from all the partners to determine their respective entitlement in terms of partnership deed and to record evidence.
15. On perusal of record it reveals that in the H.C.A. No,94/2004 it was pleaded by the defendants that in terms of Clause 14 of the partnership deed for dissolution of the firm three contributing members can give three months notice in writing and as such the dissolution of firm by learned Single Judge is improper. This ground specifically repelled by Honourable Division Bench as according to section 43 of Partnership Act partnership may be dissolved by any partner by giving a notice under section 44 of the Partnership Act. It was held that the Court can dissolve a firm at the suit of any partner. It was further held in view of written statement filed by the defendants the partnership between the partners has not been denied and as such the partnership was rightly dissolved and appeal was dismissed in limine. The Nazir recorded the evidence and submitted his report dated 2-8-2007 wherein the share is determined as per Partnership Deed. According to which male members have double share and female members have single share which position was admitted by both the parties. The Nazir further submitted that defendants No,1 has not produced documents of the accounts and lay out plan in respect of the partnership firm. The defendant contented that all the record taken away by the plaintiff No,1 but no proof of such allegation has been produced. The Nazir served a notice to defendant No,1 to produce accounts of partnership and assets i,e, movable and immovable on 27-12-2006. The Nazir further submitted that in spite of repeatedly asking the defendant No,1 to produce the accounts of firm but no such account and layout plan of Shaban Town were produced by the defendant No,1 as such it is not possible for the Nazir of this Court to prepare the account of partnership. It appears from the record that the defendants admitted in their written statement and affidavit-in-evidence and cross- examination that defendants Nos.1 and 2 were conducting the affairs of partnership business as Managing Partners but they failed to tender the accounts to the plaintiffs and in spite of directions of this Court the defendant No,1 as Managing Partner failed to provide and submit accounts of the partnership firm, bank statement, approved plan, allotment orders of the plots and monies received from the allottees and all the accounts in respect of partnership firm but the defendant No,1 fraudulently, malafidely 'and dishonestly failed to produce all such accounts and documents.
16. On perusal of record and evidence produced by the parties, the arguments advanced by Mr. Mubarak Ahmed have some force.
17. The contentions raised by Mr. S. Ashfaq Hussain Rizvi are misconceived as it is very clear in Article 106 of the Limitation Act, 1908 that period of limitation is three years which is being counted from the date of dissolution of partnership. In the present case partnership has been dissolved by this Court by preliminary decree. As regards Article 120 of the Limitation Act, 1908 the period is six years from the date of when the right to sue accrues. In the present case both these Articles are not attracted. Therefore, the suit was filed is within time. He further contended that no letter of administration has been produced by the legal representatives of the deceased, this contention as well has no force as it is admitted position, therefore, it was not necessary to file the letter of administration in the present case. He further submits that one minor could not become a partner even through guardian under section 30 of the Partnership Act (XI of 1932). Section 30 of the Partnership Act, 1932 is reads as under:-- "30. Minors admitted to the benefits of partnership.---(1) A person who is a minor according to the law to which he is subject may not be a nartner in a firm, but, with the consent of all the partners ri,r the time being, he may be admitted to the benefits of partnership.
(2) Such minor has a right to such share of the property and of the profits of the firm as may be agreed upon, and he may have access to and inspect and copy any of the accounts of the firm.
(3) Such minor's share is liable for the acts of the firm, but the minor is not personally liable for any such act.
(4) Such minor may not sue the partners for an account or payment of his share of the property or profits of the firm, save when severing his connection with the firm, and in such case the amount of his share shall be determined by a valuation made as far as possible in accordance with the rules contained in section 48: Provided that all the partners acting together or any partner entitled to dissolve the firm upon notice to other partners may elect in such suit to dissolve the firm and thereupon the Court shall proceed with the suit as one for dissolution and for settling accounts between the partners, and the amount of the share of the minor shall be determined along with the shares of the partners.
(5) At any time within six months of his attaining majority, or of his obtaining knowledge that he had been admitted to the benefits of partnership, whichever date is later, such person may give public notice that he has elected to become or that he has elected not to become a partner in the firm, and such notice shall determine his position as regards the firm: Provided that, if he fails to give such notice, he shall become a partner in the firm on the expiry of the said six months.
(6) Where any person has been admitted as a minor to the benefits or partnership in a firm, the burden of proving the fact that such person had no knowledge of such admission until a particular date after the expiry of six months of his attaining majority shall lie on the person asserting that fact.
(7) Where such person becomes a partner,---
(a) his rights and liabilities as a minor continue up to the date on which he becomes a partner, but he also becomes personally liable to third parties for all acts of the firm done since he was admitted to the benefits of partnership, and
(b) his share in the property and profits of the firm shall be the share to which he was entitled as a minor.
(8) Where such person elects not to become a partner,---
(a) his rights and liabilities shall continue to be those of a minor under this section up to the date on which he gives public notice,
(b) his share shall not be liable for any acts of the firm done after the date of the notice, and
(c) he shall be entitled to sue the partners for his share of the property and profits in accordance with subsection (4).
(9) Nothing in subsections (7) and (8) shall affect the provisions of section 28."
18. A bare reading of section 30 clearly shows that a minor may be a partner in a firm with the consent of all the partners for the time being and he may be admitted to the benefits of partnership. In the present case the defendant himself admitted the factual position and raised no objection in respect of partnership of the minor in place of the deceased. The facts of the cited judgment are also distinguishable from the facts of the case in hand.
19. It is well-settled proposition of law that cases of parties should be decided on merits. If a party upon evidence brought on record, has established his case on merits, then such party should not be knocked out on technical grounds. The technicalities should not create hurdles in the way of substantial justice. Mere technicalities, unless offering insurmountable hurdles, should not be allowed to defeat the ends of justice. Reliance may be placed on 2003 SCM R 1553 (Nasir Hamid Qureshi v. Abbasi Begum). Learned counsel was also provided an opportunity to file the written arguments. If he so desired, but no written arguments in addition to the above contentions have been 'filed by the learned counsel for the defendants Nos.1 to 9.
20. In view of the above, preliminary decree passed on 14-4-2004 is confirmed. Office is directed to prepare final decree in terms of Order XX Rules 13, C.P.C. The Nazir is appointed as Receiver as well as Commissioner to take over the business and all the assets of the partnership firm moveable or immovable and recover from the defendants Nos.1 and 2 including unutilized land of 3.45 acres of Shaban Town. After taking over the all assets and properties of the partnership firm, Nazir is directed to sell the same through public auction on as is where is basis and to distribute the sale proceeds amongst the partners in accordance with their respective shares.
The suit is decreed in the above terms