MUHAMMAD NASIR MAHFOOZ, J.--- The instant Civil Revision Petition is directed against the judgment and decree dated 20.01.2014 of learned Additional District Judge Lakki Marwat in Civil Appeal No. 23/13 of 2011 and also against the judgment and decree dated 29.01.2011 of Civil Judge-I Lakki Marwat, in suit No. 252/1 of 2006/2008, whereby the suit as well as appeal of petitioner/plaintiff were dismissed.
2. Brief facts of the case are that petitioner/p laintif f filed a suit against the respondents/defendants for dissolution of partnership agreement registered in 1984 regarding a brick kiln which was built jointly by the plaintif f, proforma defendants and legal heirs of defendants No.1 & 2; that Hamidullah without any notice had sold out the shares of petitioner/plaintif f to defendants No.3 to 6. A decree for rendition of account was also sought to the effect that defendants are liable to pay Rs.675000/-, the shares of plaintif f and proforma respondents No.7 & 8 along with their profit for the last four years amounting to Rs.15,60,000/- because Hamidullah Managing Director , the predecessor of defendants No.1 & 2 sold their shares to defendants No. 3 to 6 for Rs.9,00,000/- while defendants No.3 & 6 are running the business for the last four years without payment of a single penny to petitioner/plaintif f.
Perpetual/mandatory injunction was also sought to the effect that defendants No.3 to 6 be restrained from running the brick-kiln, till payment of share and profit to the petitioner/plaintif f.
3. Respondents/defendants resisted the suit by submitting their written statement raising various legal and factual objections therein. Divergent pleadings of the parties resulted in framing of as many as ten issues including relief. After adducing pro and contra evidence and hearing learned counsel for the parties, the learned trial court non-suited the petitioner/plaintiff. The said judgment and decree of the learned trial Court was impugned before appellate court which too was dismissed through the impugned judgment, hence, the instant petition.
4. I have heard arguments of learned counsel for the parties and perused the record.
5. For the purpose of resolving controversy in the instant case, it would be necessary to mention some relevant provisions of the Partnership Act, 1932. Under Section-6 of the ibid Act, the mode of determining existence of partnership is to be ascertained from the real relation between the parties as shown by all relevant facts taken together as to whether a group of persons is or is not a Firm or whether a person is or is not a partner in a Firm.
Similarly under Section-9 general duties of the partners is provided and U/S. 13 mutual rights and liabilities between the partners is provided. Under Section-16 of the ibid Act subject to contract between the partners, any profit derived from the transaction of any business of the Firm shall be in the name of the Firm and any partner deriving any benefit, profits made shall account for and pay it to the Firm. Any one of the partner may have implied authority to act as agent of the Firm as provided by Section-19 which could be limited U/S. 20 of the Act. Under Section-26 of the ibid Act, any injury caused to any third party or any penalty incurred due to wrongful act or omission of a partner acting in the ordinary course of business of a firm is the liability of the Firm, it is to the same extent as the partner U/S. 29 of the Act a transfer by a partner of his interest in the Firm does not entitle the transferee during the continuance of the Firm of interference in the conduct of the business except to receive the share of profit of the transferring partner.
Under Section-29 (2) in case of dissolution of a Firm, the transferring partner ceases to be a partner and is entitled to receive the share of the Firm to which the transferring partner is entitled as well as to an account from the date of dissolution. Under Section-35 of the ibid Act, the liability of estate of deceased partner is not liable to any act of the Firm done after his death in the case when the Firm is not dissolved.
6. A Firm may be dissolved under Section-39 of the ibid Act, either with the consent of all the partners or in accordance with the contract between the partners as provided by Section-40. Under Section-42 a Firm stands dissolved on the happening of certain contingencies. Section -42 (c) provides for dissolution of a Firm by death of a partner, but subject to the contract between the parties.
7. In order to apply the enabling provision of the Partnership Act in suit of rendition of accounts, it is essential for the plaintif f to prove that the partnership exist, the Firm is indulged in any trade or business, the Firm has gained some profit or has faced losses. In the instant case, the plaintif f has produced one Habibullah Industrial Development Officer, Bannu as PW-1, who has stated that vide Form-A & H, the Firm by the name of "Marwat Bhatta Khasht Hassan Abad Ghazni Khel" exists and the same record is produced as Ex.PW -1/1 to Ex.PW 1/3, which was duly registered on 01.4.1984. According to his record, the partnership still exists. In cross-examination, he has admitted that there is no recor d in his office regarding investment of Rs.1,05,000/- by the partners.
Petitioner has appeared as PW-2, but has not produced a single proof of the business conducted from the year 1984 till institution of his suit in the year 2006. Onus to prove such fact lies on the petitioner/plaintif f to prove that the Firm is practically performing business It is admitted by DW-1 that Haji Hameedullah had submitted an affidavit that the partnership has ceased to exist and he is running the "Bhatta Khasht" in his individual capacity .
This affidavit is dated 01.4.1987, which is part of the record of income tax office. Not an iota of evidence has been produced to show as to how and what amount of business has been undertaken by the Firm. Moreover , Hamidullah Khan is stated to have died in the year 2002 but the instant suit is filed in the year 2006 but no effort during this period is made for demanding any rendition of accounts.
8. After going through the evidence and judgments and decrees passed by the learned courts below I do not find any reason to interfere with the impugned judgments and decrees, hence, instant revision petition is dismissed with no order as to costs.