' SALAHUDDIN PANHWAR, J.---Through instant order I decide C.M.A. No. 10525 of 2011 and C.M.A. No. 9726 of 2010, under Order VII, Rule 11, C.P.C. In above captioned suits moved by the defendants Nos.
10, 11 and 12 respectively.
2. Precisely, relevant facts of the Suit No. 1308 of 2005 are that plaintiff is partnership concern engaged in the business of construction of buildings, houses, flats/shops, sale and purchase of real estate for purpose of development into commercial' projects; the plaintiffs predecessor in interest Muhammad Jamil through a registered Sale Deed dated 10-5-1992 sold the suit property for valuable consideration to one Mr. Abdul Ghaffar Noor. Subsequently, the competent authority duly mutated the name of Abdul Ghaffar Noor in the Record of Rights. By the creation of Malir District the property situated therein was bifurcated in District East and District Malir. On 13-10-2005, Officials of the revenue department i.e. Defendant No.1 through their officers/labourer(s) all of a sudden and without notice came upon the plaintiff's suit property and tried to demolish the boundary wall constructed around the suit property on the plea that Deh Form H, reflects that defendant No.8 is the owner of instant property. Further, it is maintained that purported entry in favour of defendant No. 8 regarding Survey No.131, admeasuring 3-06 acres is bogus; fabricated and have been issued with ulterior motives in order to usurp the plaintiff's suit property. Hence on this background, plaintiff mainly prayed as under: A. Declaration that the plaintiff is the lawful owner of the suit property admeasuring 2-00 acres situated in Sector 2-B of Corridor Area, KDA Scheme No.33, Karachi without any let or hindrance or interference by the defendants. B. Declaration that the defendants Nos. 8, 9, 10 and 11 have no right, title or interest in the suit property admeasuring 2-00 acres, Sector 2-B of Corridor Area, KDA, Scheme No.33, Karachi.
C. Declaration that non-issuance of challan and regularization of the suit property by the defendant No.1 is illegal, arbitrary and without jurisdiction.
3. In the Suit No. 1379 of 2010, plaintiffs, while maintaining same legal status asserted that the suit property was purchased by the plaintiffs through registered Sale Deed and the name of the plaintiff as the owner of the suit property is also mutated in the record of rights. Since purchase of the suit property, the plaintiff was enjoying peaceful vacant possession of the suit property and has posted their Chowkidar on the suit. Property. On 8th May, 2008, the defendant No.1/Board of Revenue upon the recommendation of the Land Committee formed under the Sindh Land Cancellation Ordinance, 2001 was pleased to issue Challan No.1033 for payment of Differential Malkano in favour of the plaintiff for the regularization of the suit property in tune of Rs.30,32,000 (i.e. Rs.15,16,000 per acre). The plaintiff duly paid the said amount and the defendant No.1 after verification of payments vide its letter bearing 40-1-385-02-S.O.1(i)/786 dated 23-7-2008 have also been pleased to regularize the suit property in Suit No.1308 of 2005 In favour of the plaintiffs. In light of the regularization, the suit property has also been mutated in favour of the plaintiffs in the record of rights. In Form II for industrial cum Commercial purpose. The defendant No.10 claims to have entered into two registered sale deeds with defendant No.12 i.e. Zehri Khan son of Fateh Muhammad Gabol in respect of two sets of lands, but such land has no nexus with the suit property. Thus, plaintiff inter alia prayed as under: A. Declaration that the plaintiffs are the lawful owner of the suit property admeasuring 2-00 acres situated in Sector 2-B of Corridor Area, KDA Scheme No.33, Karachi without any let or hindrance or interference by the defendants. B. Declaration that the defendants Nos. 10, 11, 12 and 14 have no right, title or interest in the suit property admeasuring 2-00 acres, Sector 2-B of Corridor Area, KDA, Scheme No.33, Karachi.
C. Declare that the defendants Nos. 10, 11,12, 13 and 14 have by illegal use of force dispossessed the plaintiffs of a portion of Suit property i.e. Approx One Acre out of Two Acres in Sector 2-B of Corridor Area, KDA Scheme No.33, Karachi.
4. Learned counsel for the defendant No.12 in Suit No.1308 of 2005, inter alia, argued that plaintiff in para-1 of both the suits has maintained that it is un-registered partnership film, hence under section 69 of the Partnership Act unregistered firm cannot file suit, therefore, instant plaint(s) are liable to be rejected. In support of his contentions he relied upon following case-laws:
(1) Australasia Bank Ltd. v. A. Ismailji and Son (PLD 1952 Lahore 314]
(2) United Cotton Factory v. Ahmed Khan [PLD 1960 Karachi 774].
(3) Province of West Pakistan v. Asher Ali, Muhammad All Co., [PLD 1968 Karachi 196].
(4) Muhammad Hasan Khan v. Province of N. -W. F. P. [1990 MLD 1039].
(5) Province of Sindh v. Royal Contractors [1996 CLC 1205]
(6) CHEF v. Union Co-operative Club Limited [1997 CLC 187]
(7) Messrs Marvi International through Partners v. Muhammad Aslam (PLD 2007 Karachi 78).
(8) Najma Sugar Mills Ltd. Through Company Secretary v. Mega Trading Company through Chief Executive [2009 CLC 209].
5. Learned counsel for the defendants Nos.10 and 11 in Suit No.1379 of 2010; while adopting the arguments of Mr. Kamal Azfar, learned counsel for defendant No.12 in Suit No. 1308 of 2005 has placed reliance on the following case-laws:
(1) All Muhammad v. Chief Settlement and Rehabilitation Commissioner [1984 SCMR 94]
(2) Messrs M. A. Majeed Khan v. Karachi Water and Sewerage Board [PLD 2002 Karachi 315]
(3) Collector of Customs (Appraisement) Collectorate of Customs, Government of Pakistan v.
Imran Enterprises [2001 CLC 419].
(4) Habib Bank Ltd. v. Iqbal I. Chundrigar [1983 CLC 1464].
(5) Lakhani Textile International v. Southern Agencies (Pvt.) Ltd. [2008 CLC 444].
(6) Messrs Marvi International through Partners v. Muhammad Aslam [PLD 2007 Karachi 781
6. In contra learned counsel for the plaintiff has contended that through instant suits, plaintiff seeks declaration with regard to subject matter property and has challenged entries of record of rights, under section 53-A of Land Revenue Act, and thus plaintiff is competent to assail the same. It is further argued that plaintiff has not sought any relief with regard to partnership firm and seek enforcement of statutory obligation of Government functionaries (defendants) therefore, section 69 of Partnership Act is not applicable; in support of this contention learned counsel has relied upon case of Messrs Muhammad Junaid v. Karachi Electricity Supply Corporation Ltd. (2010 YLR 952) and case of Ardeshir Cowasjee v. K.B.C.A. [PLD 2003 Karachi 3141.
7. I have heard the arguments of respective sides and have gone through the available record.
8. Since the core issue with reference to which the application(s) under Order VII, rule 11, C.P.C. Are being pressed is the provision of section 69 of the Partnership Act, 1932, therefore, in all understanding, reference of this provision, being material is as follows for convenience and consideration: ' S.
69. Effect of non-registration (1) 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 a 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; ' Bare perusal of section 69(1) of the Partnership Act, 1923 clearly speaks about the situation where a suit is being filed by the firm or the partner(s) thereof for or against firm or its partner(s). Further, at this juncture it would be conducive to have a glance upon the section 69(2) of the Act, which provides that:- (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 persons suing are or have been shown in the Register of Firms as partners in the firm.
' The term 'third party' has been defined by the Act itself as:-Section 2(c) 'third party' used in relation to a firm or to a partner therein means any person who is not a partner in the firm; and
9. The definition of the term 'third party' by the Act itself has made it clear that where a lis is being filed by a firm or on behalf of firm against 'third party' i.e. One who is not a partner in the firm then maintainability or disability of plaintiff i.e. 'firm' shall be examined with reference to section 69(2) of the Act.
10. Having come to such conclusion, now it would be germane to state that object of section 69(2) of the Act provides that this provision itself has confined the application of the provision to following condition(s):--
(i) suit should be by or on behalf of a firm;
(ii) it should be to enforce a right, arising from a contract;
(iii) should be against third party;
11. Whereas the Section 4 of the Act defines 'firm' as ' Persons who have entered into partnership with one another are called individually 'partners' add collectively 'a firm'.
' As discussed above, the condition(s) Nos. (I) and (iii), being clear and are not required for further dialogue as the term 'firm' and 'third party' stand explained/defined by the Act itself, which, however defines the parties to the suit. The condition (ii), nevertheless, speaks and defines the nature of the lis (suit); it should relate to the enforcement of a right arising from a contract. If all three are read together it would make a picture, definable in following words:- ' 'Suit should be by the firm for enforcement of a right, arising out of a contract against third party'
12. It can well be said that enforcement of a right is a right, which is arising from a contract arrived between a 'firm' and 'third party'. Worth to add here that application of the above referred sections is mandatory in its nature and since the term 'to enforce a right arising from a contract' is common in both subsection(s) of section 69(1) and 69(2) therefore, whenever it is found that suit, so filed under status of 'firm' for enforcement of a right arising from a contract then such disability shall result in dismissal/rejection of the suit/plaint.
13. Here, it is relevant to state that above proposition of law falls within the ambit of stare decisis, hence must not be disturbed, reference, if any can be made to the following case-laws:- ' In the case of Usman v. Haji Omer and Haji Razzak (PLD 1966 SC 328)
' The Partnership Act does not prescribe any special mode for the creation of a partnership which can validly come into being even upon an oral agreement between the parties. Non-registration of the firm under section 69 of the Partnership Act does not affect the validity of the partnership or prevent any of the partners from suing for the dissolution of the firm or for accounts or the realization of the property of a dissolved firm. This section only bars a suit for enforcing a right arising out of a contract against either the firm or any past, or present member of it or against any third party'.
' In the case of Australasia Bank Ltd. v. Messrs A. Ismailiji and Sons and others (PLD 1952 Lahore 314) it is held that:- "The language of subsection (2) of section 69 leaves no room for doubt that if a suit falling within subsection (2) of section 69 of the Partnership Act is instituted by a firm which is not registered at the time of the institution of the suit, the plaint must he rejected and the subsequent registration of the firm cannot validate the proceedings which were invalid in their inception.
' Courts are not makers but only interpreters of Law and cannot water down the effect of a provision of a statute, because the interpretation based on well established principles is likely to work hardship in some cases falling within the plain meaning of that provision."
' In the case of Messrs United Cotton Factory Hyderabad v. Ahmed Khan (PLD 1960 Karachi 774), it is held that:- "The provisions of section 69 of the Partnership Act are mandatory and there is no power of condonation vested in the Courts to grant to the defaulting firm in this respect any relief against the disability imposed by this section. The prohibition contained in the section is against the institution of the' suit or the proceedings of the nature mentioned therein and its effect, therefore, has to he determined at the time of the institution of the suit or the proceedings. The section entails a disability on the part of a Court to the cognizance of the suit or proceedings from their very inception in the same way as it would not take the cognizance_ of a suit barred by limitation or of a suit suffering from a defect of jurisdiction in the form in which it is instituted. The view, which now firmly holds the field, is that the registration of a firm is a condition precedent to its right to institute a suit of the nature mentioned in section 69(2) of the Partnership Act and that a registration after the institution of the suit cannot cure the defect of non-registration existing at the instance of the institution of the suit'
(Underlining as provided is for highlighting the most relevant)
' In the case of Atta Muhammad v. Settlement Commissioner (PLD 1971 SC 61) it is held that:- It is well-settled that the neglect of plain requirement of a statutory enactment which prescribed how something is to be done will invalidate thing being done in some other manner if the enactment is absolute but not if it is merely directory'
14. While, reverting to the merits of the instant case, in view of above touchstone, it is pertinent to mention that the perusal of the record would show that the present plaintiff has, nowhere, claimed to have entered into a contract with defendants under a status of 'firm'; the suit has not been filed by the plaintiff(s) for enforcement of a right in relation to any contract but the relief(s), sought in both the suit(s) are such which are governed by the Specific Relief Act. Where it is not B established/found that suit, so filed under status of the firm' is not for enforcement of a right, which is arising from a contract arrived between a 'firm' and 'third party' then such suit shall not hit by disability, explained and defined by section 69(2) of the Partnership Act, 1923.
15. In view of above discussion, I am of the clear view that both the suit(s) are not in contravention of embargo provided under section 69(2) of the Partnership Act, 1923 hence, at such stage of the case, it would not be legally justified to knock the plaintiffs out of the court only because of the reason that suit(s), filed under status of 'firm' which is not registered one. Besides, it would be advantageous to mention that the penal provisions should be read strictly and they should not be given any other meaning except what was intended thereby because an incorrect view or interpretation shall result in penalizing one of its rights, which, otherwise, are required proper and fair determination.
16. Accordingly, I am of the view that instant application(s) for rejection of the plaint of the plaintiffs on sole ground of application of section 69 of the Act, are not sustainable under the law hence same are dismissed as such.