1. This suit has been filed by the Plaintiff for recovery of goods worth Rs. 35,000, cancellation of pronote valued at Rs. 30,000 and possession of the shops under Order XXXIII of the Code of Civil Procedure.
2. The facts leading to this suit are that the plaintiff was carrying on business as dealer in spare parts of motor cars and as seller and purchaser of used motor vehicles since 1959. It is alleged in the plaint that the plaintiff has established the said business at Shop No. 18, Akbar Road, Karachi which shop was allotted by the Karachi Municipal Corporation in the name of one Qazi Muhammad Yousaf with whom the plaintiff had become a partner in the business under the name and style of lqbal & Company but subsequently the said partnership was dissolved and the plaintiff alone started his business as sole proprietor and carried on business under the name and style of `Nasir Sons'. It is alleged in the plaint that defendant No. 2 who was then dealing in the sale and purchase of claims was also one of the clients of the plaintiff and was known to him. It is further alleged that the said defendant No. 2 approached him and suggested to do partnership business with him. A few days thereafter the defendant No. 2 brought with him defendant No. 1 and introduced him with the plaintiff as financier. The defendant No. 1 represented that he was intending to establish some industry but he was convinced with the plaintiffs business which was more lucrative. Therefore, he was prepared to enter into a partnership and invest a large amount in it. The plaintiff under the inducement that a partnership deed would be executed between the parties and a large amount will be invested in it acquired two more shops bearing Nos. 2 and 3 at Akbar Road and informed defendant No. 1 that he should make arrangement for necessary investment.
3. It is further alleged in the plaint that the defendant No. 1 thereafter suggested that the capital of the partnership would be Rs. 1,20,000 and the plaintiff should arrange his share of Rs. 60,000 and the plaintiff should provide that amount in cash. It was suggested that the stock of the spare parts available with the plaintiff should be valued at Rs. 30,000 and should be transferred to the proposed partnership as regards balance. It was suggested that the plaintiff should execute a promissory note in the sum of Rs. 30,000 in favour of the defendants so that his investment may become equal to that of the defendant No. 1 and thus, the partnership should start with a capital of Rs. 1,20,000. The plaintiff reposed full confidence in the defendants and executed a promissory note of Rs. 30,000 and also signed the documents prepared by the defendant s transferring the plaintiffs assets to him. The defendants took the plaintiff to their Advocate who drafted the proposed partnership deed which was never executed by the defendants who kept the plaintiff on mere promises and the business remained running for about a period of four months. It is further alleged that he had to visit Hyderabad where also he was having his business and in his absence, he deputed his two brothers as business incharge. The plaintiff returned from Hyderabad on or about 13-1-1965 and as soon as he reached his shop, he founded that the board of Nasir & Sons had been removed and defendant No. 3 was occupying the shops. On inquiry from the father of defendant No. 3 he informed that defendant No.1 was the owner of the business on the basis of documents already executed by him and in his absence shops were sealed by K.M.C. And defendant No. 1 got them unsealed by his own efforts. It is the case of the plaintiff that by misrepresentation and fraud the defendants got a promissory note for Rs. 30,000 executed by the plaintiff in their favour and also got a transfer deed of his spare parts and furniture valued at Rs. 30,000 executed in their favour and thereafter misappropriated the plaintiff's shops as well as goods, hence this suit.
4. The defendant No. 1 fled written statement wherein he pleaded that defendant. No. 2. Is in exclusive possession of shops 1 and 2 by virtue of compromise decree in Suit No. 185 of 1970 entered into between defendants Nos. 1 and 2. Similarly the plaintiffs prayer seeking for declaration of pronote as cancelled is void, inoperative and not maintainable in view of decree passed against him on the basis of the said promissory note by this Court in Suit No. 69 of 1969 filed by him against the plaintiff. The defendant No. 1 took the plea that the plaintiff, sold and transferred Shop No. 18 and the stock-in-trade alongwith possession thereof, to the defendant No. 1 for Rs. 34,000 as is evident from an agreement dated 28-10-1964. The defendant No. 1 prayed for dismissal of the suit.
5. The defendant No. 1 fled written statement wherein he pleaded that defendant No. 2 is in exclusive possession of shops 1 and 2 by virtue of compromise decree in Suit No, 185 of 1970 entered into between defendants Nos. 1 and 2. Similarly the plaintiff's prayer seeking for declaration of pronote as cancelled is void, inoperative and not maintainable in view of a decree passed against him on the basis of the said promissory note by this Court in Suit No. 69 of 1969 filed by him against the plaintiff. The defendant No. 1 took the pica that the plaintiff sold and transferred Shop No. 18 and the stock-in-trade alongwith possession thereof, to the defendant No. 1 for Rs. 34,000 as is evident from an agreement dated 28-10-1964. The defendant No. 1 prayed for dismissal of the suit.
6. The defendants 2 and 3 fled joint written statement wherein they pleaded that defendant No. 1 met the plaintiff as the defendant No. 1 wanted to purchase Shop No. 18 and the plaintiff sold and transferred Shop No. 18 and stock---in-trade for Rs. 34,000. The defendants 2 and 3 denied the allegations made in the plaint and prayed that the plaintiff was not entitled to any relief against them.
7. The following issues were framed:
(1) Is the suit time-barred?
(2) Whether the agreement of sale of stock-in-trade of the plaintiff dated 28-10-1964 and the promissory note of Rs. 30,000 by the plaintiff in favour of the defendant No. 1 were obtained by fraud and are for the reason void documents?
(3) Whether there was partnership between the plaintiff and defendant No. 1 as alleged?
(4) Whether the suit is liable to be dismissed in view of non-registration of Firm under section 69 of Partnership Act?
8. ISSUE NO. 1 Agreement of sale was executed on 28-10-1964 and the J.M. No. 75 of 1967 was filed on 3-6-1967.
9. The suit is within time. In view of this factual position, the learned counsel for the defendants have not pressed this issue.
10. ISSUE NO. 2 The plaintiff in his evidence stated that he was carrying on business under the name and style of Nasir & sons. He knew defendant No. 2 who dealt with claims. The defendant No. 1 entered into an agreement showing that he was the financier. This happened in February or March, 1964. The defendant No. 1 took him to the office of Mr. Haziqul Khairi, Advocate who prepared a partnership deed. The defendant No. 1 told him that this partnership deed was prepared by the aforesaid Advocate and he signed it. The defendant stated that he will provide unlimited finance and he should assign the shop and all his assets in his favour.
11. The plaintiff submitted in his cross-examination that if he had received any deed, he would have got it registered with the Registrar. He also admitted that he did not receive it but orally they had entered into partnership. The partnership was not acted upon. He lost everything, the shop and articles in it and therefore he did not find it necessary to get it dissolved. The plaintiff was shown copy of agreement of sale. The plaintiff admitted that it bears his signature. It was produced as Ext.
12. 9/1.
13. It was urged on behalf of the plaintiff that the plaintiff through fraud suffered losses valuing Rs.
14. 30,000 and also possession of Shop No. 18. A perusal of agreement of sale (Ext. 9/3) would show that the plaintiff sold and transferred the running business of Nasir Sons, 18, Akbar Road, Karachi including spare parts of scooters, motor-cycles etc., stocked in Shop No. 18, Akbar Road, its goodwill, furniture and fixture, electric motor and tenancy or occupancy rights in consideration of Rs. 24,000. It is an admitted position that the plaintiff has not prayed for cancellation of agreement of sale Ext. 9/3. I am of the view that the plaintiff is not entitled to claim Rs. 30,000 without seeking cancellation of the document. It is an admitted position that there is nothing on record that the execution of agreement of sale was entered by fraud or misrepresentation. The agreement of sale Ext. 9/3 is voidable one, that is valid until it is declared as void, the question of its cancellation would not arise. I am of the view that the plaintiff is not entitled to any relief until and unless he sought a cancellation of the document Ext. 9/3.
15. As regards the plea of fraud and misrepresentation in the execution of document Ext. 9/3, it cannot be lightly brushed aside in the absence of specific pleadings. A general allegation in the plaint that the plaintiff had reposed confidence in the defendants is much too insufficient to amount to which the Court can take note of. A party cannot be allowed to travel beyond by what pleaded by him and put in issue.
16. ISSUES NOS. 3 and 4 The plaintiff stated in his evidence that the partnership was entered between him and defendant No. 1. The partnership was carried on for about three months. The plaintiff admitted in his cross- examination that orally they has entered into partnership. The plaintiff also admitted in his cross- examination that it was not acted upon.
17. The partnership business in question was admittedly not registered under the Partnership Act, 1932.
18. The, plaintiff did not pray for dissolution of the partnership in question. The partnership business in question was admittedly no dissolved and the accounts were not settled between the parties. It has been held in several reported decisions that section 69(3)(a) of the Act is an exception to subsections (1) and (2) of section 69. Subsection (2) bars a suit by or on behalf of a firm against third parties to enforce a right arising from a contract unless the firm is registered. But the last sentence of subsection (3)(a) of Section 69 provides that the provisions of subsections (1) and (2) shall not affect the enforcement of any right or power to release the property of a dissolved firm.
19. The suit is not covered by section 69(3)(a). Accordingly the suit being hit by section 69(1) of the Partnership Act is liable to be dismissed.
20. The learned counsel for the plaintiff has not pressed the claim of Rs. 30,000.
21. For the aforesaid reasons and circumstances, I am of tire opinion that the plaintiff is not entitled to any relief. The suit is accordingly dismissed with no order as to costs.