1. ' This is a Civil Revision application directed against the judgment and the decree delivered on 22- 8-1989 by the IIIrd Additional District Judge South, Karachi in CA. No, 81/85. Under the said appeal, the judgment and the decree by the Senior Civil Judge, Karachi, South, in Suit No, 2192/70 was assailed.
2. ' Suit No, 2192 of 1970 was tiled by respondent No,1 against the applicant for recovery of Rs,18,061.50 as compensation for use and occupation of a godown situated on plot bearing S.No,9, Sheet No, LEA-7 (Old No, 12 Sheet No, T.G. ) at Harchand Rai Road, Old Haji Camp, Karachi, for the period from 1-11-1967 to 31-10-1970. The suit was contested by the applicant who in his written statement challenged the suit to be barred by section 69(2) of the Partnership Act on the ground that the respondent No,1 was an un registered firm and it had ceased to exist with effect from 31-10-1965 on account of being dissolved. In respect of the godown in question, the applicant claimed being owner of the same, having purchased it from its owners under registered sale-deed dated 18-5- 1970.
3. ' Learned trial Court framed following issues:
(1) Whether the suit is barred under section 69 of the Partnership Act?
(2) Whether defendants are the licensees of the plaintiff and have failed to pay the occupation charges from 1-11-1967 to 31-10-1970?
(3) Whether defendants are in occupation of the premises in their own rights as owner by a registered sale-deed dated 18-5-1970?
(4) What should the decree be?
4. ' After recording evidence of the parties, learned trial Court under his judgment dated 22-4-1982 decreed the suit for recovery of Rs,18,061.50, with further occupation charges from the date of the suit till realization. On the first issue, the trial Court took view that the respondent No,1 firm, continued to exist on the day of filing of the suit and that it was registered with the Registrar of Firms, as per the Registration Certificate Exh.6 and consequently the suit was not barred by section 69 of the Partnership Act. On merits the evidence of the respondent No,1 was accepted to the effect that the go down in question was taken by the applicant from the respondent No,1 at the rate of Rs,16.50 per day. The trial Court took view that the applicant had failed to prove, that he had occupied the godown in question by virtue of a sale agreement or that it was finally occupied by him under the registered sale-deed dated 18-5-1970.
5. ' The applicant and the respondent No,2, who was joined as a party, filed Civil Appeal No, 81 of 1985, which was dismissed under the impugned judgment and the decree. Hence this revision application.
6. ' Mr. Khaliq Humayun, learned counsel for the applicant argued that the respondent No,1 being an unregistered firm the suit filed by it was hit by section 69 of Partnership Act. It was next argued that the respondent No,1 was dissolved on 31-10-1965 as per para. 6 of Rent Case No, 516 of 1969 filed by Tayyabali and Fakhruddin against his partners in the firm, for eviction. In respect of the certificate Ex.6, it was argued that the same did not show if the respondent No,1 firm continued to exist after the same was registered on 13-9-1961. Learned counsel for the applicant challenged legality of the respondent No,1 as a partnership firm, on the ground that one of its partners namely Fida Hussain was minor when the partnership came into existence. It was lastly argued that the applicant was occupying the premises as licensee from 1-11-1967 and that the premises in question were purchased on 18-5-1970 under sale-deed dated 18-5-1970. Learned counsel cited the case of Ajitsing Manibhai and others v. Grunning & Co. AIR 1925 Bom. 494, where it was held that it is not correct to sue persons as partners in the name of the firm by a partner or manager.
7. ' Mr. Qurban All Pishori, learned counsel for the respondent No,1 defended the impugned order and contended that evidence of Fida Hussain Exh.5 and Yaqoob Ali Exh.7 was sufficient to prove the case on merits. In respect of the objection raised under section 69 of the Partnership Act, learned counsel for the respondent No,1 relied on the certificate Exh.6 showing that respondent No,1 was registered as a firm. Such entry was made in the register on 8-9-1961 with Ghulam Hussain Madhwalla, Taiyab Ali and Fida Hussain (minor) as partners. Fida Hussain was admitted to the benefits of partnership only. Learned counsel referred to para. 5 of the Rent Application No,516 of 1969 which reads as follows:--- "That on 6th May, 1961, opponent No,1 as a partner of 'GA. Madhwala & Company' handed over possession of demised premises to opponent No,3 on leave and licence basis on payment of Rs, 16.50 per day as occupation charges."
8. ' Section 69 of the Partnership Act says that no suit to enforce a right arising from a contract or conferred by said act, shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. In the instant case extract Exh.6 from the Register of Firms shows that respondent No,1 was registered as a firm with No, 3536. Respondent No,! filed Suit No, 2192 of 1970 through Ghulam Hussain Madhwala, who is shown as one of the three partners of respondent No,1 in the extract Exh.6. Viewed from any angle, none of the provisions contained in section 69 of the Partnership Act bars filing of the suit by the respondent No,1. In the Bombay case reported in A.I.R 1925 Born. 494, the view taken was that it is not correct to sue persons as partners in the name of the firm by a partner or manager, but firm can be sued through its partners. In the instant case the suit was filed by a firm and not against a firm. Moreover the suit was filed in name of the firm and not in name of partners of the firm. The trial Court relying on the extract Exh.6 took view that the suit was not barred under section 69 of the Partnership Act. Finding of the trial Court on this point was maintained by the Appellate Court. Findings of the Courts below on this point were neither fanciful nor erronenous nor without jurisdiction and as such the same cannot be interferred with.
9. ' On merits, the respondent No,1 examined Fida Hussain Exh.5 and his father Yaqoob Ali Exh.7.
10. Yaqoob Ali stated that Fida Hussain was minor when respondent No,1 firm was established and that he used to look after the affairs on behalf of Fida Hussain. In the extract Exh.6 Fida Hussain is shown to be admitted only to the benefits of the partnership firm. Legality of the firm was not challenged by anybody in any suit or other proceeding and the same cannot be determined in these proceedings.
11. ' Admittedly, the premises in question are occupied by applicant/defendant No,1 Abdul Hamid Exh.8. He claimed to have purchased the suit premises from Mulla Issa Jee under an agreement of sale. He claimed being in possession of the premises. He added that sale-deed was also executed in his name and in the name of his brothers on 18-5-1970. Fida Hussain Exh.5 deposed that the applicant was occupying the suit premises as licensee and that the applicant was liable to pay licence fee at the rate of Rs,16.50 per day. Fida Hussain added that the applicant had failed to pay the licence fee for the period from 1-11-1967 to 31-10-1970. In his cross-examination, Fida Hussain denied if the respondent No,1 firm was dissolved on 31-10-1965. Fida Hussain admitted that M/s. Mulla Jee Hassan Jee and Co. were the landlords/owners of the suit premises. During the period for which the compensation is claimed. Fida Hussain also examined P.W. Yaqoob Ali in support. On the other hand Abdul Hamid Exh.8 claimed to have purchased the disputed property under a sale agreement which was followed by a sale-deed. In his evidence Abdul Hamid did not bring on record any sale agreement or any sale-deed executed in his favour by Mulla Issa Jee. Even Mulla Issa Jee was not examined. The evidence of respondent No,1 on record was sufficient on the basis of which a decree could be passed in favour of the respondent No,1. Appellate Court maintained judgment and decree of the trial Court.
12. ' In a revision application, the orders of the Courts below cannot be interfered with unless some jurisdictional errors are pointed out or it is established that the impugned fmding is the result of ignoring material evidence or is the outcome of misreading of evidence or is based on extraneous consideration. In the case of N.S.Venkatagiri Ayyangar and another v. Hindu Religious Endowments Board, Madras AIR 1949 PC 156, it was held that there can be no justification for the view that section 115, C.P.C. was intended to authorise the High Courts to interfere and correct gross and palyable errors of subordinate Courts. It was also held in the same case that section 115, C.P.C. empowers the High Court to satisfy itself upon three matters viz. whether the order of the subordinate Court is within its jurisdiction, whether the case is one in which the Court ought to exercise jurisdiction, and whether in exercising jurisdiction the Court has not acted illegally. It was also held in the same case that section 115 of C.P.C. was intended to authorise the High Courts to interfere and correct gross and palpable errors of subordinate Courts. In the case of Shahazad Muhammad Umer Beg v.
13. Sultan Mahmood PLD 1970 SC 139, it was held that section 115 of the C.P.C. is meant primarily for correcting errors made by the subordinate Courts in the exercise of their jurisdiction and not those errors which are made in their jurisdiction unless the jurisdiction is found to have been exercised fancifully or arbitrarily. In the cases of Abdul Majeed v, Superintending Engineer and others 1988 SCM R 1138 and Faiz Ahmed v. Allah Wasai 1988 SCM R 234 and Mohammad Zaheer Khan v.
14. Mohammad Zamir Khan 1987 SCM R 1144, it was held that concurrent findings of the Courts below are not to be interfered with in revision.
15. ' As a result of the above discussion, this revision application stands dismissed with no orders as to costs.