' This is a suit for the recovery of Rs.28,83,904.77. The brief facts of the case are that the Defendant No.1 is a partnership firm, while Defendants Nos.2 to 6 are its partners. Defendants Nos.3 and 4 are sons of Defendant No.2, while Defendants Nos.5 and 6 are brothers inter se and they are nephews of Defendant No.2. The partnership firm carries on business at Faisalabad, Hyderabad and Karachi.
Defendants Nos.5 and 6 looked after the business of the firm at Karachi.
2. The plaintiffs at the request of the Defendants allowed the following facilities to Defendants:- "(a) Facility under part I of the Export Re-finance Scheme of the State Bank of Pakistan;
(b) Facility under Part II of the Export Re-finance Scheme of the State Bank of Pakistan;
(c) Facility under LAPC Account."
3. To secure the loans advanced against the said facilities, the Defendant No.1 executed Promissory Note dated 30-12-1981 in the sum of Rs.5,32,040,14, Promissory Note dated 30-12-1985 for Rs.15,51,941.62, another promissory Note dated 6-11-1982 for Rs.5,00,000 and Promissory Note dated 30-12-1984 for Rs.5,67,922.81. Defendant No.1 also executed certain undertakings, photostat copies of which have been produced as Annexures-P/7 to P/9. To further secure the loans, the Defendant No.1 also created equitaLle mortgage over the property No. C/61 and No.F/140 both in SITE, Karachi by depositing the Title Deeds of the same with the Plaintiffs and issued such letter of deposit of the Title-Deeds dated 7-11-1983. The Defendants failed to clear the dues and hence this suit.
4. Defendants Nos.5 and 6 have not filed any application for leave to defend the suit. Their Advocate Mr. G.R. Waris made a statement in the Court. That the Defendants Nos.5 and 6 admit the claim of the Plaintiffs.
5. However, Defendants Nos.1 to 4 have filed the application for leave to defend the suit. The main ground raised by the contesting defendants is that the Defendant No.6 without any authority may have raised some loans which he misappropriated and committed fraud upon the partnership firm and, therefore, they are not liable to pay the dues, if any. It is further contended that no document was signed by the contesting Defendants with regard to the loans in question. It is also contended that the Defendants had informed the plaintiffs about the undesirable activities of the Defendants Nos.5 and 6 vide their letter dated 28-7-1984. It is also contended that the partnership firm dissolved by a deed of settlement and further that the suit for dissolution of partnership had been filed by the Defendants. It is further contended that the contesting Defendants have filed the suit for damages against the Defendants Nos.5 and 6 as well as against the plaintffs.
6. The fact that the Defendants Nos.2 to 6 were partners of Defendant No.1 is not disputed. It is not disputed that the partnership firm was carrying on business at Karachi which was looked after by the defendants. Nos.5 and 6. The fact that the loans were advanced by the Plaintiffs is also not specifically disputed, but it is averred in Para 18 of the .Affidavit in support of the application that the alleged amounts were perhaps borrowed by the Defendants Nos.5 and 6 from the Plaintiffs without having any consent of 'the remaining partners and without any lawful authority to transact the alleged loans in terms of the Partnership-Deed or otherwise.
7. It is contended by Mr. Mansoorul Arfin, learned counsel for the plaintiffs that the Defendants have not specifically denied the entries in the Statement of Accounts produced by the Plaintiffs, nor they have denied its correctness. Rather they have impliedly admitted the advancing of the loans. It is further contended, that apart from the fact, that the case of the plaintiffs is supported by documentary evidence, their case gets support from the admission of the Defendants Nos.5 and 6, who have admitted the claim of the plaintiffs. It is further contended that the act of a partner would bind down the other partners as well as the firm. Under Section 18 of the Partnership Act a partner is the agent of the firm for the purpose of the business of the firm. Under section 19, subsection (1) of the said act under the implied authority of partner as agent of the firm the act of a partner, which is done to carry on, in the usual way, business of the Kind carried on by the firm, binds the firm. Under Section 21 of the said Act such act or instrument done or executed by a partner on behalf of the firm shall be done or executed in the firm-name, or in any other manner expressing or implying an intention to bind the firm judicata--Principles of--Plea of res judicata can be dealt with in proceedings relating to issuance of temporary injunction--Court, while considering ingredients of prima facie case, has to see whether the suit was prima facie maintainable or not and for that matter point of res judicata can also be gone into. [p. 2547] A
(b) Civil Procedure Code (V of 1908)-- ---S. 11 & 0.11, R. 2--Res judicata--Principles of--Plaintiff in previous suit claiming ownership of strip of land in dispute but in subsequent suit claiming that the ownership vested in some one else and he had a right of easement or passage over the same--Plea which could be taken but had not been taken in the suit was to be taken to be a plea which was actually and directly in issue and, therefore, could not be taken in any subsequent suit--Relief available but not claimed in a suit is to be deemed to have been relinquished under 0.II, R.2. [p. 2547] B
(c) Civil Procedure Code (V of 1908)-- ---0. XXXIX, Rr. 1 & 2--Temporary injunction--Requirements for grant of--Ingredients of balance of convenience and irreparable loss ought to be examined only when plaintiff has a prima facie case--Existence of a prima .Facie case does not in itself entitle a plaintiff to relief of injunction-- Petitioner-plaintiff having no prima facie case, no further probe into matter, held, was necessary while deciding application for temporary injunction. [p. 2547] C Sardar Riaz Karim for Petitioners.
' The petitioners have filed a suit for a declaration that the strip of land in dispute is their passage and they are entitled to use the same as such and the respondents have no right in or connection with the same. They have also prayed for isssuance of a perpetual injunction restraining the respondents from interfering in their use of the passage. Alongwith the suit they filed an application for issuance of a temporary injunction which was dismissed by the learned Senior Civil Judge, Multan vide order, dated 11-12-1984. They filed an appeal which was dismissed by the learned Additional District Judge, Multan vide order dated 21-12-1986. This revision petition has been filed against these orders.
2. I have heard the learned counsel for the petitioners. Prior to the filing of this suit the petitioners had filed a suit claiming ownership of the strip of land now alleged to be their passage (in dispute) of the petitioners. That suit was decreed by the learned trial court concerned but an appeal filed thereagainst was dismissed and then the petitioners filed a revision petition in this Court. The same was also dismissed vide order dated 6-7-1983 by this Court. The strip in dispute formed a part of the land which had been acquired by the Multan Development Authority. It was obviously found in the previous litigation that the land having been acquired by the Multan Development Authority the petitioners had no right in the said land. It may be pointed out that when such acquisition takes place the land so acquired vests in the Authority free of all encumbrances including any right of easement or passage. Therefore, prima facie when the land, the passage in dispute, alongwith other land was acquired the right of passage, even if there was any, stood legally abolished. In other words the said strip of the land also vested in the Multan Development Authority free from all encumbrances and without any right of easement or passage, of the petitioners. The acquisition proceedings are not challenged in the present suit. Therefore, prima facie due to the said acquisition the strip of land, the so-called passage, vested in the Multan Development Authority and they had every right to transfer the same to any one and the transferee would get the same free of all encumbrances as the Multan Development Authority itself acquired. The learned Courts below have refused the prayer of temporary injunction on the main ground that the suit appears to be barred due to said prior litigation. The learned counsel for the petitioners has argued that they have wrongly interpreted that the suit could be barred by res judicata and that the learned trial Court did not examine the ingredients of prima facie case, balance of convenience and irreparable loss. He has further argued that the plea of res judicata could not be dealt with in the proceedings relating to the issuance of temporary injunction. The argument has no force. When we talk of the ingredient of prima facie case we have got to see that the suit is prima facie maintainable or not or for that matter the point of res judicata can also be gone into. The learned Courts below have not given a definite opinion, as they were not supposed to do so, that the suit was barred by res judicata otherwise they could have dismissed the suit itself. They have given a prima facie conclusion that the suit does not appear to be maintainable, because of the bar of res judicata and they were within their rights to examine this point and to say so. As already pointed out above the petitioners in their previous suit claimed ownership of the strip of land (passage) in dispute.
They did not claim that the ownership vested in some one else and they had a right of easement or passage over the same. A plea which could be taken but has not been taken in the suit is to be taken to be a plea which was actually and directly in issue and therefore, cannot be taken in any subsequent suit. Therefore, prima facie the suit appears to be barred by res judicata. Apart from that a relief which is available but is not claimed in a suit is to be deemed to have been relinquished and it cannot be taken in a subsequent suit. Prima facie the bar of Order II, rule 2, C.P.C. Will also apply to the case. It has been stated above that the land (passage) in dispute was acquired by the Multan Development Authority and that the said acquisition vested the land in dispute in the Multan Development Authority free of all encumbrances. On this account, too, the petitioners have no prima facie case. When a plaintiff has no prima facie case it is futile to examine the other two ingredients of balance of convenience and irreparable loss. The said ingredients ought to be examined only when a plaintiff has a prima facie case. The existence of a prima facie case alone does not in itself entitle a plaintiff to the relief of injunction. If he has a prima facie case he can be allowed the said relief if the ingredients of balance of convenience and irreparable loss also go in his favour. In the present case the petitioners have no prima fade case and therefore no further probe into the matter, while deciding the application for temporary injunction, was necessary. The orders of the learned Courts below do not suffer from any material irregularity or illegality. There is no reason to interfere in the discretion exercised by them. The petition is, therefore, dismissed in limine. .