' KHIZAR HAYAT, J.-Through filing of this appeal the appellant has challenged the validity of judgment and decree, dated 20th July, 1980 passed by Civil Judge First Class, Multan, in a suit for rendition of accounts and dissolution of partnership, instituted by the appellant.
2. The relevant facts giving rise to this appeal briefly are that the respondent owned plot No, 1525,W/8-Muslim, Akbar Road, Multan. He obtained No Objection Certificate for constructing a cinema over it and having got the plan sanctioned from the authorities concerned actually started the construction of the cinema building. He then entered into partnership with the appellant through partnership deed dated 7th July, 1968, Exh, D-1, in cinema business. According to the agreement, the appellant contributed a sum of Rs, 4 lakh while the respondent contributed Rs, 8 lakh, and they shared the business in the ratio of 1/3rd and 2/3rd, respectively and agreed to share the profits of the business in the same ratio. It was also agreed that the respondent shall act as managing partner during his lifetime, and shall be responsible for getting the name of the appellant incorporated as a partner in the business, in Income-tax Department, Property Tax Department, Electricity Department, records of Insurance Company, etc. And also apply for the issuance of licence to the District Magistrate on behalf of both the partners, and cinema shall be named as Sargam Cinema.
3. Before the cinema went into operation, there arose dispute between the parties. On 22nd September, 1971, a suit for dissolution of partnership and rendition of accounts was filed by the appellant alleging that despite the appellant had paid Rs,
4. Lakh, as his share in the business, the respondent violated the condition of the partnership inter alia in the following manner
(a) He did not get the name of the appellant entered in the Taxation record.
(b) In the application submitted to the District Magistrate for Licence, the respondent had shown himself to be the sole owner of the cinema and did not include the name of the appellant.
(c) Instead of naming the cinema as Sargam Cinema, the respondent named it 'after his own name as Naushab Cinema and submitted the application of licence under that name.
(d) The respondent being an accounting party has neither maintained any account nor has shown any account to the appellant.
4. The respondent made an application to the trial Court invoking arbitration clause 24 of partnership agreement and sought that proceedings be stayed and the dispute be referred to the arbitrator as stipulated in the partnership deed. Consequently the learned trial Court stayed the suit, but this order was reversed by the Additional District Judge, Multan, on 25th September, 1971.
Ultimately, the High Court by its order, dated 3rd November, 1972 restored the order of the trial Court and observed that the dispute of dissolution of partnership was a business dispute which was within the ambit of clause 24 of the agreement. Feeling aggrieved the appellant filed petition for special leave to appeal in the Supreme Court, wherein leave was granted and the order of High Court was suspended with the direction to the trial Court not to pass final order in the suit till the decision of the appeal by the Supreme Court.
6. During the pendency of the suit the appellant filed an application on 6th February, 1973 before the trial Court under Order XL, rule 1, C. P. C. For appointment of a receiver of the cinema which was dismissed on 17th February, 1973. As appeal also failed before the District Judge, therefore, the appellant filed revision petition in the High Court. The High Court accepted the same and appointed an Advocate of this Court as receiver. The order of the High Court was challenged in the Supreme Court which was decided as Civil Appeal No, 36 of 1974 wherein the Supreme Court upheld the order of the High Court regarding appointment of a receiver with the modification that instead of an Advocate of this Court the respondent being a major contributory in the business and the managing partner for life shall act as receiver also. It was further directed that the respondent shall maintain proper accounts of the cinema business accountable to the trial Court ; that he shall run the business himself or lease it out by open auction ; that he shall pay a sum of Rs, 5,000 per month to the appellant in lieu of his share in the business and appropriate upto Rs, 10,000 per month as his share in the profit of the business, subject to adjustment when the final accounts shall be taken.
7. The learned trial Court, however, proceeded with the original suit and on the basis of the pleadings of the parties framed eight issues. The plaintiff-appellant in support of his case produced 7 witnesses, and various documents. He had not yet concluded his evidence when counsel for the defendant-respondent made a statement on 4th December, 1979 conceding that preliminary decree in favour of the appellant upto 1/3rd share of the appellant may be passed, partnership be dissolved with effect from the date of institution of the suit and commission be appointed for rendition of accounts. Learned counsel for the plaintiff-appellant accepted the statement of the respondent's counsel and consequently preliminary consent decree in favour of the appellant was passed on 4th December, 1979.
8. After the passing of preliminary decree the defendant-respondent on 1st March, 1980 submitted an application before the trial Court praying that the main suit be decided on the basis of partnership deed Exh. D. 1 and also claimed that because the cinema building had completed after the partnership had been dissolved, therefore, he was the sole owner of the cinema. The appellant filed its reply on 4th March, 1980 and questioned the maintainability of the said application as it was aimed at seeking an amendment of the preliminary consent decree, dated 4th December, 1979 and submitted that it merit, dismissal. The case kept adjourning for one reason or the other till it was fixed for 19th July, 1980 for hearing argument on the said application. On 19th July, 1980, the case was again adjourned to 20th July, 1980 with the following order {{URDU TEXT}} ' It appears that the application of the defendant has been wrongly described as that of the plaintiff. However, the learned trial Court instead of disposing of the application proceeded to decide the case finally vide impugned judgment and decree against which the present appeal has been filed.
9. Learned counsel appearing on behalf of the appellant raised the following contentions :-
(1) That the impugned judgment deciding the suit finally on 20th July, 1980 was void and nullity as the Supreme Court vide its order dated 11th January, 1973 had stayed pronouncement of final judgment in the suit till decision of Appeal No, 239/72 by it.
(ii) That the learned trial Court having heard the arguments on 19th July, 1980 on a miscellaneous application, filed by the respondent adjourned the case to 20th July, 1980 for pronouncing order on that application but surprisingly enough it decided the main suit without hearing the plaintiff- appellant on merits of suit and therefore the proceedings suffered from principle of audi alteram partem.
' In reply, the learned counsel for the defendant-respondent submitted that :-
(a) both the parties appear to have consented that the trial Court should finally decide the case, hence, the impugned judgment and decree suffers from no illegality ; and
(b) the order of the Supreme Court, dated 11th January, 1973 did not restrain the trial Court from pronouncing final judgment in suit rather it implied that the matter may not be sent to the arbitrator till the decision of the appeal as had been prayed by the defendant-respondent.
10. We have carefully considered the submissions of both the learned counsel and have also perused the record.
11. To appreciate as to what was the true import of the order of the Supreme Court dated 11th January, 1973, passed in C. P. S. L. A. No, 239/72 it would be advantageous to reproduce its relevant portion hereunder : "There are important questions of law including that of interpretation of the partnership Deed involving in the petition and they merit consideration. We, accordingly, grant leave to appeal.
Security for costs Rs, 1,000. We direct that the case may proceed before the trial Court, but no final judgment passed until the disposal of the appeal."
' There is no ambiguity whatsoever in the order quoted above and it hardly needs second thought to find that the trial Court was specifically restrained by their Lordships of the Supreme Court from passing the final judgment until the appeal by Supreme Court was decided. It is not denied that the said appeal had not yet been decided when the final judgment in the suit was pronounced on 20th July, 1980. It is by now well-settled that an order staying the proceedings pending before the lower Court, ousts the jurisdiction of that Court to travel beyond the limits prescribed in the stay order which becomes operative from the moment it is passed. It was so held by a Full Bench of this Court in Karam All and others v. Rana and others (1) and is being consistently followed thereafter. It is admitted that the stay order referred to above issued by the Supreme Court was in existence on the date the impugned judgment was passed by the trial Court in the suit pending before it. In the circumstances, we are of the confirmed view that on 20th July, 1980, the learned trial Judge had no jurisdiction to pronounce final judgment in the suit, therefore, the impugned judgment and decree are nullity in the eye of law. Consequently the appeal succeeds and the impugned judgment and decree are set aside with no order as to cost. Since the appeal has succeeded on the short ground of jurisdiction, therefore, it would be redundant to examine the second contention of the appellant's counsel. The record of the case be sent immediately to the Court concerned for taking up further proceedings in accordance with law from 19th July, 1960 onwards.
(1) PLD 1949 Lah. 100
11. Before parting with this judgment, we feel disposed to direct that the learned trial Judge shall dispose of this case expeditiously say within three months from the date of the receipt of the record from this Court, no matter if he is to proceed day to day.