Bashir Ahmad Khan and 3 others, heirs-in-interest of Mir Zaman Khan an, J) plaintiff, have called into question the` judgments and decrees of both the Senior Civil Judge, Abbottabad and the District Judge, Abbottabad, dated 14-3-1982 and 23-10-1982 respectively, on the ground that their predecessor-in-interest Mir Zaman Khan plaintiff was non-suited illegally and both the judgments of the learned lower Courts were against the facts on the record and law relevant thereto.
2. The facts giving rise to this revision petition are that Mir Zaman Khan instituted a suit in the Court of Senior Civil Judge, Abbottabad seeking a declaration to the effect that the respondents- defendants were not entitled' to recover Rs.1,14,409.26 from the plaintiff-petitioner and also prayed for: issuance of a permanent injunction against the respondents-defendants. The suit was contested by the Provincial Government of N.-W.F.P. And other two defendants --respondents.
Finding both the parties at variance on a number of issues, the learned trial Court recorded such evidence as was produced by the parties in support of their respective pleadings. During the course of arguments, however, the defendants-respondents relied heavily on a document of the so-called partnership of the firm M/s. Mir Zaman Khan and Sons (Exh.D.W.l/2). Consequently without adverting to or discussing the issues framed on the pleadings of the parties, much less giving decision in respect thereof, the learned trial Court entered into the realm of controversy on the question whether the suit of the plaintiff-petitioner was maintainable on account of the plaintiff firm having not been registered under the provisions of the Partner Act qua the deed Exh.D.W.l/2 and gave a finding reflecting in para. 9 of its judgment which states:- "Thus on the basis of existing evidence, I am convinced that a Firm has duly been constituted consisting of M/s. Meer Zaman, Bashir Ahmad Khan and others as its partners. The Firm on the other hand has lodged the instant suit without proper registration, in view of the provisions of section 69(2) of the Partnership Act, the present suit is not maintainable" and dismissed the suit with no order as to costs. In appeal, the judgment of the learned trial Court was affirmed by the learned Additional District Judge, Abbottabad.
3. I have heard Kh. Abdur Rashid, Advocate, learned counsel for the petitioners and Kh. Nazir Ahmad, Advocate, learned counsel for the defendants-- respondents and have gone through the record of the case with considerable degree of care.
4. It is contended on behalf of the petitioner that` holding the plaintiff as a firm under the provisions of the Partnership Act and non-suiting him for want of registration under section 69 (ibid) is misconceived in fact as in law for the reasons;.
(1)that the plaintiff who dealt in Forest contract under the name of M/s. Mir Zaman Khan and Sons was the sole proprietor thereof which is evident from the title of the suit as also from the very para. No.l of the plaint.
(2)that there has been no specific denial of this fact in the written statement of the defendant- respondent in corresponding para. No.l.
(3)that the so-called deed (Exh.D.W.1/2) is inadmissible in evidence for the reasons that:- (i)its execution is not proved; (ii)it is neither mentioned or included in the list of documents nor placed on record therewith; (iii)that the deed does not disclose itself as a partnership deed nor its contents constitute partnership as per requirement of section 4 of the Partnership Act, 1932; and (iv)the nomenclature of the firm by itself will not be sufficient a ground to give rise to an inference that it was a partnership and as such warrants registration for the purpose of instituting a suit on its behalf.
5. On the other hand, the learned counsel for the defendants-respondents maintained that the plaintiff-petitioner did not specifically deny the execution of the document and therefore it can be acted upon to hold the plaintiff as a firm required to be registered under the Partnership Act for the purpose of filing this suit and their failure in this regard has rightly been held by the learned lower Courts to be fatal to their plaint. He also submitted that in the limited scope of revisional jurisdiction of this Court, the concurrent finding of both the lower forums cannot be interfered with.
6. I have given my serious consideration to the submissions made by the learned counsel and I am of the view that both the learned lower Courts have failed to decide the matter in its true perspective. A reference to the record reveals that the plaint has been filed by Mir Zaman who, in its title, has mentioned himself as the sole proprietor of the plaintiff, M/s. Mir Zaman Khan and Sons and so has he averred unambiguously in para. 1 of the plaint. A perusal of the written statement submitted by the defendants-respondents, prima facie, lends support to the contention of the learned counsel for the plaintiff-petitioner in that this has not been specifically denied as required under Order VIII,~RuIe 5, C.P.C. Which reads as under:- "Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."
7.Plain reading of the aforementioned provision indicates that an allegation of fact in the plaint at the first instance requires specific denial thereof, or such denial may be reflected by necessary implication or it may simply be not admitted in the pleadings of the defendant, in the absence whereof, the allegation of fact shall be taken to have been admitted by the opposite-party. The question in the instant case that requires determination is as to whether the pleadings in reply to para. 1 in corresponding para. 1 of the written statement fulfil any of the A foregoing conditions. A perusal of the written statement reveals that' certainly there is no specific denial of the averments made in the plaint to the effect that the plaintiff-petitioner is the sole proprietor of the firm nor it is stated to have not been admitted. That the written statement in this regard generally can be presumed a denial by necessary implication, I am afraid, lacks such manifestation from para. 1 of the written statement and no such inference can be validly deduced therefrom which situation is further strengthened from the fact the trial Court did not feel the necessity of framing any specific issue on the question. In fact in the written statement while defendants- respondents admitted the plaintiff/--petitioner as the contractor, they left the factum of Mir Zaman as being the sole owner of the firm as subject to proof, leaving thereby for the Court, as per proviso to Rule 5 of Order VIII, C.P.C., in its discretion requiring this fact to be proved which otherwise seems to have been admitted.
8. The record shows that the Court did not exercise this discretion at all, I firstly by making no specific order in this behalf and secondly by framing no issue on this score. In this context of the matter, I have no hesitation in holding that' having made no specific denial or non-admission in the written statement, no such denial corresponding to the averments made in para. 1 of the plaint, can be inferred even by necessary implication and consequently it shall be deemed to have been admitted by the defendants-respondents.
9. Although my foregoing finding would clinch the matter I would like to advert to other aspects of the case as well.
10. There being no issue framed which reflects non-existence of any controversy on the question of Mir Zaman being the sole proprietor of the firm Mir Zaman and Sons, the production of deed Exh.D.W.1/2 at the stage of recording the evidence of the defendants also gives rise to a legitimate inference that evidence recorded was out of pleadings and undisputedly put the plaintiffs -- petitioners in an disadvantageous situation inasmuch as they have been deprived B of any opportunity to have refuted the same. It is settled proposition of law that a party cannot be taken by surprise by raising such point of fact or law that has not been incorporated in its pleadings, or to state it more specifically, a party cannot be allowed by the Court to go out of its pleadings and cause prejudice to the I opposite party by allowing such surprises during the proceedings.
11. It is interesting to note that P.W.1 Bashir Ahmad who is allegedly a party to the said deed was neither confronted with the document Exh,D.W.1/2 nor was he put a single question in his cross- examination by the defendants-respondents in this regard notwithstanding the fact that the very second sentence of his deposition was to the effect:- "Mir Zaman Khan is the sole proprietor of M/s. Mir Zaman Khan and Sons."
12. It is again well settled that any part of the statement of a witness if not l questioned in the cross- examination, shall be presumed to have been admitted as correct and true. On this score as well, the defendants-respondents were estopped IC to challenge the veracity of the statement that Mir Zaman was the sole proprietor! Of the Firm who entered into contract with the defendants- respondents and as such could competently file the suit.
13. A perusal of Exh.D.W.l/2 itself would reveal that it lacks the decisive characteristic features of a partnership as required by section 4 of the Partnership Act which reads as follows:- "Partnership" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually "partners" and collectively "a firm", and the name under which their business is carried on is called the "firm name".
14. A plain reading of the foregoing provision would show that to constitute a partnership there must be a business, an agreement to share the profits of that business and the business must be carried on by all or any of the partners acting for all. In other words, the essential element to constitute a partnership is the existence of a business carried on by the partners with an agreement to share the profits thereof.
15. In this context of the matter, I have no hesitation in holding that it is only when a firm is set up by persons who enter into a partnership with the intention of carrying on a business in order to share the profits thereof and a partnership deed is duly executed by the partners that a firm, before embarking upon a course of litigation by way of filing a suit in a Court of law, is required to get itself registered. But if a firm lacks any of the foregoing constituents it shall not fall within the mischief of section 69 of the Partnership Act and mere nomenclature of ostensibly giving an impression of a "firm name" shall not debar it to file a suit without complying with the requirements of section 69 ibid.
16. A reference to the so-called deed of partnership Exh.D.W.l/2, relied upon by the defendants- respondents shows that it does not give out the requisite constituents of partnership as envisaged under section 4 of the Partnership Act. Such being the case both the learned lower Courts, I am constrained to hold, have misconceived the nature of the document and misapplied the law relevant thereto.
17. Turning to the revisional jurisdiction of this Court, true, it is limited to the scope as contained in section 115, C.P.C. And it is also a settled proposition that where there are concurrent findings of both the lower Courts on the question of fact, it is normally not interfered with. But it is equally true a consistent view on the point that once a judgment is founded on such facts as are not borne out from the record, or wrong inferences are drawn therefrom, such judgment is held to be the result of misreading/non-reading of the evidence and the revisions jurisdiction of High Court can be justifiably invoked for examining the propriety and correctness of the findings and if need be to pass such orders as be deemed fit in the circumstances of a given case by way of interfering therewith.
18. The instant case is an apt example of such cases where I find that the judgments of both the lower Courts are based on misconception of facts on record as discussed above and they cannot be sustained accordingly.
19. In the result, I hold that it is not conclusively proved that the plaintiff was a firm in accordance with section 4 of the Partnership Act and as such suffered from non-registration under section 69
(ibid) or consequently his suit was not maintainable.
20. It has been admitted at the bar that the recording of evidence of the parties has concluded on 6-12-1979 and the case lingered on for the arguments till 14-3-1982 when it was finally decided on a limited question not arising from the pleadings nor the issues framed but simply on a technical point of non---registration of the so-called firm.
21. Let it be borne in mind that substantial justice should not be crucified at the altar of expeditious disposal of case on sheer technicalities, particularly in a case like the one in hand which suffered from serious doubts as to the existence of a firm qua the plaintiff and the applicability of section 69 of Partnership Act thereto.
22. In the light of the aforesaid discussion, I accept this revision petition, set aside the judgments of both the learned lower Courts and remand the case back to the trial Court for deciding it on merits within a period of two months of the receipt of the rile. Cost shall follow the events.