' This is a suit filed by four plaintiffs, namely, Huma Enterprises, a partnership firm comprising of five partners, as plaintiff No. 1, and three of its partners i.e. Shaikh Muhammad Afzal, Ghulam Hussain and Muhammad Yusuf Burney, as plaintiff Nos. 2, 3 and 4. There are three defendants. Defendants Nos. 1 and 3 are shown as the other patners of Huma Enterprises, and defendant No. 2 is National Motors Limited. Suit was filed on 29-11-1973 for declaration and perpetual injunction. According to the plaint, the plaintiff carry on principally at Karachi, the business of dealing in Bus/Truck chassis, etc. pursuant to franchise/agency/dealership rights enjoyed by them under defendant No. 2, National Motors Ltd. Defendant No.1, as stated above, is shown as a partner of the plaintiff firm in the plaint. Defendant No.3 is also impleaded as a partner but as a nominee of defendant No.1. The case of the plaintiff was that all the finances of the plaintiff firm were contributed by plaintiffs Nos.
2, 3 and 4 and defendants Nos.1 and 3 had not contributed any finances, but defendant No.1, in collusion with the officers of National Motors Ltd. (defendant No.2 in the suit), was able to obtain for himself, either in his own name or in the name of his nominee, the dealership rights of the plaintiffs and as such the plaintiff's business was in the process of being diverted to defendant No.l. It was averred that a letter, dated 2-11-1973 of National Motors Limited had been received by the plaintiff firm whereby the dealership agreement with the plaintiff firm was cancelled with immediate effect.
Plaintiff challenged the validity of the cancellation letter, dated 2-11-1973. The following reliefs have been claimed in their suit by the plaintiffs:-
(i) Declaration that the letter, dated 2-11-1973 is illegal, violates principles of natural justice and is ultra vires the powers and constitution of National Motors Limited;
(ii) Permanent injunction restraining National Motors Limited from giving effect to or acting under the cancellation letter, dated 2-11-1973;
(iii) Permanent injunction restraining defendant No.1 from carrying on any business of the same or competing nature with that of the plaintiff.
2. Defendants No.1 and 2 filed their Written Statements resisting the suit. Defendant No.3 is ex parte.
No .Written Statement has been filed by him. He did not appear in the case. In fact in para. 3 of the plaint, he has been shown a pro forma defendant. Defendant No.1 took a preliminary objection that the suit is not maintainable. According to him, the partnership had been formed for the purpose of carrying on business as dealer of National Motors Limited and as the dealership had been cancelled, the partnership also came to an end as the very basis of the partnership had disappeared. Defendant No.1 claimed that it were his efforts alone which secured the franchise from National Motors Limited and plaintiffs Nos. 2, 3 and 4 were taken as partners on their representation that they had requisite experience in the field in question but the said representation was found to be false and the plaintiffs Nos. 2,3 and 4 could not fulfil the requirements of National Motors Limited which resulted in the cancellation of the dealership.
According to defendant No.1, he did not obtain any other agency or dealership from National Motors Limited. It was further averred that no business was done by the plaintiff firm as dealer of National Motors Ltd. He denied the various adverse allegations made against him.
' In their Written Statement, National Motors Limited averred that the dealership agreement was lawfully terminated by them under clause 20 of the agreement and that it was not necessary to issue a show-cause notice to the plaintiff firm prior to termination of the agreement.
3. On the pleadings of the parties, the following issues were settled by the Court on 7-10-1978:-
(1) Whether the firm stood dissolved by the notice of defendant No.1.?
(2) Whether the firm was for the limited purpose mentioned in para graph (a) of preliminary objections of the Written Statement of defendant No.1? If so, whether it stands dissolved?
(3) Who secured the franchise for the business in question and what is the effect of the withdrawal of the franchise by defendant No.2 on the partnership firm?
(4) Whether the agreement of dealership was signed between the partnership firm and defendant No.2? If so, what is the effect?
(5) Whether the defendants Nos. 1 and 2, fraudulently colluded with each other to terminate the dealership rights of the firm?
(6) Whether the defendant No.1 was directly and/or in another name granted dealership rights by the defendant No.2? If so, its effect?
4. On behalf of the plaintiffs, plaintiff No.4 gave evidence and one other witness, Muhammad Aslam, a junior executive of National Motors, also gave evidence and produced certain documents.
Evidence of the plaintiffs was closed by Mr.Wajihuddin on 25-3-1982. No evidence was led on behalf of defendants Nos. 1 and 2. Side of defendant No.1 was closed on 13-4-1982 and that of defendant No.2 on 10-5-1982. The case came up for arguments on 12-8-1982 and then it was adjourned from time to time at the request of one or the other counsel. Arguments of Mr. Wajihuddin, learned counsel for the plaintiff, were heard at length by me on 5-9-1984 and on 9-10-1984, when he concluded his arguments. The case was then adjourned to 23-10-1984 for the arguments of learned counsel for defendants Nos. 1 and 2, but on that day, Mr. Wajihuddin filed an application (C.M.A. 5161/84) under Order VI, rule 17 read with section 151, C.P.C. to amend the plaint and to add the following additional prayer: - "Damages against the defendant No.2 equivalent to commission allowed by the defendant No.2 to the transferees/successors of plaintiff dealership rights and/or in such measure or quantum as deemed just by this Hon'ble Court."
' I heard the arguments of the three learned counsel on this application as well as on the main case. The arguments of learned counsel were concluded on 18-11-1984 on which day by a short order I dismissed the application for amendment moved on behalf of the plaintiff and reserved judgment on the main suit.
5 In support of C.M. 5161/1984, Mr.Wajihuddin relied upon the following judgments: - Karamat All v. Muhammad Younus PLD 1963 SC 191; Akhlaque Hussain v. WAPDA 1977 SCMR 284 and Amina Begum v. Ghulam Dastgir PLD 1978 SC 220.
'These authorities were cited for arguing that even at this late stage an application for amendment can be made. In appropriate cases, for compelling reasons or in the interest of justice, amendments have been allowed even at the appellate stage but in my view in the facts and circumstances of this case no case was made out by the plaintiff for amendment of the plaint as prayed for by C.M.A. 5161/84. This was a fit case for seeking damages in case it could be proved that the termination of the agreement was mala fide and had been brought about through a fraud perpetrated by defendants Nos. 1 and 2 on the plaintiffs but the plaintiffs considered it proper only to claim reliefs of declaration and injunction. Reference here may be made to order, dated 26-10- 1976 of Fakhruddin G.Ebrahim J. whereby the injunction application filed b the plaintiff in this suit was dismissed. This order clearly put the plaintiff on notice that the plaintiff's case should have been for damages. But even then no action was taken to amend the plaint. After 11 year of filing of the suit, when evidence had also been closed over two years ago, and learned counsel for the plaintiff had concluded his arguments, this application for amendment has been filed. In my view the suit filed by the plaintiff from the point of view of the reliefs sought is itself not maintainable. In the facts and circumstances of this case I was not inclined to grant this application and for reasons recorded here, I dismissed C.M.A. 5161/84.
6. I may now deal with the issues framed in this suit. The evidence recorded in this suit clearly indicates that the partnership firm was constituted to obtain dealership from National Motors Limited and run the business as dealer of defendant No.2. The solitary reason for joining hands with defendant No.1 was to obtain the dealership from National Motors Limited. If the business for which the firm was constituted could no longer be carried on, the partnership firm came to an end. Notice dated 2-11-1973 terminating the dealership had the effect of dissolving the plaintiff firm. Issue No.1 is answered in the affirmative accordingly. As a result issue No.2 is also answered in the affirmative.
7. The evidence of Muhammad Aslam, an employee of National Motors Limited, who had been called as a witness by the plaintiffs produced certain documents also. His evidence has established that the franchise for the business in question had been secured by defendant No.l.
Effect of withdrawal of franchise by defendant No.2 was that the partner ship stood dissolved. Issue No.3 is answered accordingly.
8. Exh.6/13 is the sale/dealership agreement dated 27-6-1973 executed between the plaintiff firm and National Motors Limited. This document has not been denied by defendants Nos. 1 and 2. It is significant to note that on behalf of the plaintiff firm only defendant No.1 has signed the agreement.
The effect of the agreement was that the plaintiff firm obtained dealership from National Motors Limited. Issue No.4 is decided accordingly.
9. On issue No.5, the evidence on record shows that there was no collusion between defendants Nos.1 and 2 resulting in the termination of the dealership agreement by defendant No.2. As observed earlier, the evidence shows that the dealership was secured by defendant No.1 and plaintiffs Nos.2, 3 and 4 had not played any role in securing dealership from National Motors Limited. Issue No.5 is answered accordingly.
10. On issue No.6, evidence of the employee of National Motors Limited (Muhammad Aslam Exh.6), who produced certain documents, shows that at the request of defendant No.1, dealership was granted to M/s. Shah Corporation and then to Sind Motors by National Motors Limited. However, this does not entitle the plaintiff to any relief in the present suit. The dealership/sales agreement was terminated by National Motors Limited purportedly acting under clause 20 of the agreement under which at the most three months' notice was required to be given. Even if such notice was not given, at the most the plaintiff firm could claim damages from the defendants No.1 and 2. What plaintiffs were asking by the reliefs sought in this suit--declaration and permanent injunction was in effect specific performance of the dealership/sales agreement. But such agreement, in my view, was not an agreement which could be got specifically enforced through the Court. If at all there was unlawful termination of the sales/dealership agreement, the plaintiff firm could have only asked for damages. In the circumstances suit for declaration and permanent injunction did not lie. Mr. Wajihuddin had relied upon sections 205 and 206 of the Contract Act and the following case law:- ' In re Shaw Wallace AIR 1931 Cal. 676; Sohrabji v. Oriental Government Security Life Insurance Co.
Ltd. AIR 1946 PC 6; P.I.D.C. v. Aziz Qureshi PLD 1965 Kar. 202; Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 157 and Muhammad Aref Effendi v. Egypt Air 1980 SCMR 588.
' Neither sections 205 and 206 of the Contract Act nor any of the judgments cited by learned counsel for the plaintiff support the case of the plaintiff that the present suit is maintainable.
' Suit No.487/1973 is, as a result, dismissed but I leave the parties to bear their own costs.