C.M.A. No,7664 of 2007 'AMIR HANI MUSLIM.---The defendant No,9 has made the application under Order VII Rule 11 C.P.C., which reads as under:--- "It is respectfully submitted on behalf of the defendant above named that this honourable Court may graciously reject the plaint as from plain reading of the same it appears to be barred under law and discloses no cause of action.
'The prayer is made in the best interest of justice."
2. The application did not disclose the provision of law under which the suit was barred. Even the affidavit in support of the application was also silent. Counter-affidavit to the application was filed refuting the averments against which affidavit-in-rejoinder was filed by the defendant.
3. It is contended by the learned counsel for the defendant that the suit was barred under section 69 of the Partnership Act,1932, which requires that no suit to enforce a right arising from a contract or conferred by the Partnership Act shall be instituted in any court by or on behalf of an unregistered firm. The learned counsel for the defendant has further contended that it is an admitted fact that the suit against the defendant has been filed in the name of an unregistered firm by one of the partners and, therefore, the suit is barred under section 69 of the. Partnership Act.
In support of his contention he has relied upon a Judgment of the Division Bench of this Court in the case of Province of West Pak. v. Asghar Ali Muhammad Ali & Co. Reported in PLD 1968 Karachi 196 wherein it has been observed that "the prohibition in section 69 of the Partnership Act is to the institution of the suit itself unless the firm is registered. The prohibition is express and mandatory. It prevents a Court from taking cognizance of a suit brought by an unregistered firm." According to the learned counsel after institution of the suit even by or on behalf of one of the partners of an unregistered firm, this defect cannot be cured and law requires that only a firm, which is registered, can file a suit. He has also relied upon the case of United Cotton Factory Hyderabad v. Ahmad Khan, reported in PLD 19.69 (W.P.) Karachi 774, wherein it was held that "registration of firms intended by the Partnership Act is a matter of substance and not of a mere form as a ceremonial trapping." The learned counsel for the defendant contended that the suit is hit by section 69 of the Partnership Act, therefore, the plaint is liable to be rejected.
4. As against this, the learned counsel for the plaintiff has contended that there is no contract between the plaintiff and defendant and the latter being a public authority was required to discharge its duties in terms of Electricity Act, 1910.. He contended that the prayers made in the suit clearly show that he is not seeking enforcement of a right arising from a contract between the parties. According to the learned counsel, in case of dispute either party has a right to approach the Electric Inspector, Government of Sindh, who is the competent authority to resolve the dispute.
He contended that, in the present proceedings, the meter which was installed at the plaintiffs' plot was removed by the defendant without recourse to the provisions of section 26 of the Electricity Act, 1910 and against this unauthorized act of the defendant, the plaintiff has filed the present suit.
According to him, the bar contained in section 69 of the Partnership Act can only apply to a contractual and not to the statutory obligations.
5. I have heard the learned counsel and have perused the record. The learned counsel for the defendant conceded that the defendant is a public authority and is governed by Electricity Act, 1910. He, however, states that the relationship between the plaintiff and defendant is governed by contract. In fact, the defendant, being a public authority discharges its duties under the Electricity Act, 1910 and any act in defiance of the provisions of Electricity Act would be construed as a breach of the statutory obligations, which in no way can be termed as breach of licence agreement entered into between the parties.
6. The judgment cited by the learned counsel for the defendant in fact is against the defendant.
The Division Bench of this Court in the case of Province of West Pakistan (supra) has already held that bar contained in section 69 of the Partnership Act would not apply to a situation where the party approaching the Court does not seek to enforce a right arising from a contract. For the sake of brevity provisions of section 69(1) and (2) are reproduced hereunder:---
(69) Effect of non-registration.---(l) 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.
(2) No suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the person suing are to have been shown in the Register of Firms as partners in the firm.
(3) ...........
(4) ........... IP
7. Section 69 of the Partnership Act prohibits filing of a suit by an unregistered firm against a party for enforcement of a right arising from a contract. However, such prohibition does not extend to a case, where the plaintiff seeks enforcement of statutory duty/obligation of defendant even if the plaintiff is an unregistered firm. Any remedy, which is sought by the unregistered firm for enforcement of a right other than arising from the contract, is not hit by the prohibition contained in section 69 of the Act. The defendant is admittedly a public authority and is governed by provisions of Electricity Act and if it fails to discharge its duties and or obligations in law, a firm whether unregistered or otherwise can always approach this Court. The word "contract" used in section 69(1) of the Partnership Act is not synonymous to the word "Statutory c Obligation" and has distinct meaning. I am therefore, of the considered view that prohibition under section 69 is not attracted in the case in hand, and therefore, the application for rejection of the plaint on the aforesaid reasons is misconceived and is accordingly dismissed.