MOHAMMAD IBRAHIM KHAN, J.---Fazal Subhan the Respondent herein in collusion with Dost Muhammad and Saadat Ahmad the Petitioners herein, introduced a suit for obtaining a decree for permanent injunction with a view to restrain from all types of interference pertaining to 45 rooms locking of the Generator from connecting the premises by way of the Generator or transformer to the hospital premises. Locking of the car parking area or for this purpose locking of the chain or locking of the hospital gate or locking of the hospital in a way the parties have entered into an agreement deed dated 13.08.2014 with regard to National Centre Hospital situated at Mohallah Tauheed Abad Saidu Sharif Swat.
2.An application under the provisions of Order VII, Rule 11 of the Civil Procedure Code at the very outset before written statement was filed on the basis that as the main cause of action may be accrued on the basis of an unregistered agreement deed pertaining to the terms and conditions in between the parties under the partnership deed dated 13.08.2014, whereas such like suits are debarred from institution before any Court under section 69 of the (the Partnership Act) 1932, thus the plaint is out-rightly be rejected.
3.The learned Court of Civil Judge/Illaqa Qazi-II Swat vide his order dated 14.03.2016 held that section 69 of the Partnership Act 1932 does not bar institution of suit for perpetual injunction and that mainly in the present suit relief has not been claimed to have entered into a contract, thus giving the agreement for the status of firm, thereby while dismissing the application under Order VII, Rule 11 of the Civil Procedure Code permission was granted for the submission of the written statement, reply to application submitted for grant of temporary injunction on further following on arguments on the application submitted for appointment of Arbitrators to settle the dispute between the parties according to the Arbitration Clause of agreement deed dated 13.08.2014.
4.Next off, aggrieved with the findings of the learned Civil Judge in utter dismissal of the application the Petitioners preferred Revision Petition before the Court learned District Judge/Zila Qazi Swat at Gulkada. By the order dated 16.06.2016 the learned appellate Court was convinced with the findings of the learned Civil Court and found the order quite reasonable which was in accordance with law and facts and as such it did not call for any interference as no illegality or irregularity were found therein, thus while maintaining the findings of learned trial Court the Revision Petition stood dismissed.
5.This is a writ petition invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 with the following perspective prayer:- <i>"It is most humbly prayed that, by acceptance of the instant writ petition, the judgments/orders passed by both the Courts below may kindly be set aside and application of the Petitioners under Order VII, Rule 11 be accepted, dismissing/rejecting plaint of the Respondent being not maintainable according to law." </i> 6.Having heard arguments of learned counsel for the parties, record with their assistance gone through.
7. After having a look of the agreement arrived at between the parties pertaining to partnership, the parties at that time were pleased to accord the terms entered therein, but as the said partnership agreement was willfully or erroneously has not been registered because there is no proof of registration, which is a public document, its requirements are given under section 69(3) when to have complied with by producing a certified copy of an entry from this register. Yet while developing arguments, learned counsel for the Petitioners has referred to section 69 <u>"effect of non-registration",</u> which is reproduced as under:- "(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 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."
8.The legislation in this behalf is followed under the dictums of the Hon'ble superior Courts reported as 1996 CLC 1205 (Karachi) "Province of Sindh through Secretary, Public Work Department, Government of Sindh Karachi and 6 others v. M/s. Royal Contractors", 1989 MLD 88 (Karachi) "Syed Nazir Hussain v. Ahtisham Muhammad All and 2 others", 2008 CLC 444 (Karachi) "Lakhani Textile International through Partner v. Messrs Southern Agencies (Pvt.) Ltd.", PLD 1982 Karachi 378 "Messrs Taj Construction Company v. Federation of Pakistan and 9 others". In a way follow up of the legislation is that whenever there is un-registered firm there is bar to file suit under section 69 of the Partnership Act (IX of 1932). Provisions of section 69 of Partnership Act, 1932 would only bar 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.
9.Above all the authority reported in PLD 2016 Supreme Court 214 "Ch. Nazir Ahmed v. Ali Ahmed and another", wherein great emphasis has been placed on the registration of the firm being mandatory requirement. It has been held in the ibid judgment "Registration of a firm a condition precedent and sine qua non to the right to institute a suit by or on behalf of the firm or its partner(s) as the case may be and any suit instituted against the mandate of law shall be barred, with an obvious consequences of rejection of the plaint by the Court as per Order VII, Rule 11(c), C. P. C".
Very frankly, learned counsel for the Respondents (hereinafter called as Plaintiffs) has come up with all that has been referred above and all that said above by learned counsel for the Petitioners (hereinafter called as Defendants) is absolutely true, yet referring to the drafting of this writ petition under Para (iv) taking in the ground which is reproduced as below:-
(iv) <i> That Respondent has got no cause of action as per plaint regarding the parking area, transformer and generator which does not include in the agreement and that is for the other property of the Petitioners." </i> Taking advantage of this ground itself by indicating that for the prayer contained in the plaint absolutely under an admission, it has come that all such ancillary matters are beyond terms and conditions settled in the partnership deed dated 13.8.2014. In support the learned counsel for the Respondents also referred to 2015 YLR 2306 (Sindh) <i><u> "Messrs Countrymen through Partners and other v. Province of Sindh through Secretary and 11 others".</i></u>
11. Where there is a prayer behind scope of an agreement of partnership which has not been registered only to the extent of terms and conditions there is a bar in introducing a suit as exclusively the words `any Court' has been used which purports including the Civil Court but without any ancillary cause of action there is no bar in presentation of any such like suits.
12. Learned counsel for the Respondents (hereinbefore called as Plaintiffs) when confronted with the contents of the grounds taken in the plaint obviously in almost all the serials for the grounds taken in the plaint including the head-note would suggest that even a suit instituted for all ancillary prayers on the basis of the agreement pertaining partnership deed dated 13.08.2014. Learned counsel for the Respondents (hereinbefore called as Plaintiffs) states that he will present an amended plaint ousting all the paras wherever there is reference of the agreement of partnership deed dated 13.8.2014 but still only ask for the prayer for obtaining permanent injunction for other than the prayers to the exclusion of the terms and conditions of the agreement deed dated 13.8.2014.
13. On this commitment, learned counsel for the parties joined hands and are conciliatory for presentation of an amended plaint in view of the commitment being made in the above manner. If learned counsel for the Respondents (hereinbefore called as Plaintiffs) feels difficulty in drafting amended plaint in such manner then may feel free to submit an application before the learned trial Court for withdrawal of the suit with the permission to file fresh suit under the same cause of action but without reference to the agreement deed dated 13.8.2014. If either the Plaintiffs (hereinafter called as Respondents) are not ready to amend their plaint as per prayers other than the agreement dated 13.8.2014 or if no application for withdrawal has been submitted with the permission to bring a fresh suit then it will be deemed that the presented plaint would stand rejected. The Respondents (hereinbefore called Plaintiffs) are directed to do the needful within a period of fortnight upon receipt of this Court order.
14. In such terms this writ petition is disposed of accordingly.