1. ' Rashid Alam, the respondent herein, filed a suit for "Accounts and Declaration" against the applicant in the Court of Civil Judge I Class, Court No,8, Karachi. He claimed that he had acquired a piece of plot from one Muhammad Hussain at Karachi Airport on rent and entered into oral partnership with applicant Muhammad Siddiq in the year 1965 to carry on the business of automobile repairs. Both of them were to share profits and losses equally. He had paid an advance rent of Rs,850 for the plot in question which was let out to him on payment of rent of Rs,100 per month. He also provided implements of the value of Rs,1,350 to the applicant. The applicant paid a sum of Rs,250 and Rs,300 on two different occasions out of the partnership business and thereafter stopped paying him anything on account of his share of profit. The business initially was carried on under the name and style of "S.R. Engineering Automobile Experts" but the applicant without his consent changed the name of the firm as "Star Engineering". He filed a suit praying for judgment and decree as under:--- "(1) Declaration to the effect that the business which at present is being carried out on the style of "Star Engineering" is the joint partnership business of "S.R. Engineering Automobile Experts".
(2) For an accounting against the defendant in respect of above partnership business coming from 3-3-1965 uptodate.
(3) Cost of the suit be awarded and such other relief be granted as deemed expedient and fit under the circumstances of the case."
2. ' The applicant was sued by name and he generally denied all the averments made in the plaint.
3. He asserted that he was the sole propritor of the firm and the piece of plot was let out to him by Muhammad Hussain. He was carrying on business initially under the name and style of "S.R.
4. Engineering Automobile Experts" but as the business name did not give a clear indication to the customers about the nature of business and services provided by him he changed the name of "Star Engineering." He asserted that the suit was incompetent and hit by section 69 of the Partnership Act, 1932.
5. The trial Judge on the basis of pleadings of the parties settled the following 10 issues:--- "(1) Whether the suit as framed is maintainable?
(2) Whether the suit is time-barred?
(3) Whether the plaint is properly stamped?
(4) Whether the plaintiff invested any capital in the alleged joint partnership of the alleged partnership to the plaintiff of the alleged partnership business?
(5) Whether the defendant is liable to render accounts to the plaintiff of the alleged partnership business?
(6) Whether there is or there was any partnership between the plaintiff and the defendant and what was the name of the firm?
(7) Whether the business premises was acquired on rent from Muhammad Hussain in terms of an Agreement dated 3-3-1965?
(8) What amount was spent or invested by the plaintiff to establish the partnership business?
(9) What is the ratio of the profit and loss in the partnership business?
6. (10)To what relief is the defendant entitled against the plaintiff?"
7. ' Parties led evidence both oral and documentary. The trial Judge on the basis of evidence recorded before him in the suit dismissed it mainly holding it to be incompetent under section 69 of the Partnership Act as the firm was never registered. He also decided that the business premises were let out to the applicant (defendant in the suit) by Muhammad Hussain in 1965 and he carried on his business till March, 1966 when he was dispossessed from the plot in question as it did not belong to Muhammad Hussain.
8. ' The respondent being aggrieved by the judgment and decree passed by the 'trial Judge preferred an appeal (Civil Appeal No,98 of 1982) which was accepted by the judgment passed by Ex-officio Additional District Judge, Karachi, on 31st May, 1984. The Appellate Judge relying on the case reported in PLD 1966 SC 328 held that suit was competent and section 69 of the Partnership Act, 1932 created no impediment in filing such suit. He generally set aside the decision of the trial Judge on other issues as well and directed preparation of a preliminary decree appointing Mr. Naeem Ahmad, Advocate, as Commissioner to determine the accounts in respect of the partnership business between the parties from 3-3-1965 upto date. It is against this decision that the present application under section 115, Civil Procedure Code has been filed by the applicant.
9. ' Mr. Khalil Kazilbash, Advocate for the applicant mainly contended that suit was filed against the applicant as a partner of an unregistered firm seeking declaration that he is a partner with him.
10. Such a suit clearly comes within prohibition contained in section 65 of the Partnership Act. He referred to the cases reported in 52 Calcutta Weekly Notes 15, AIR 1941 Rang. 196, AIR 1954 Bom. 532, PLD 1982 Kar.
11. 378.
12. ' Mr. S.M. Alam, Advocate appearing for the respondent, referred to paragrpah 7 of the plaint which clearly stated that applicant had changed the name of business and replaced the board with different business board styled as "Star Engineering" contrary to the terms of oral partnership amounting to abrupt closure of the running business. A suit for accounts of a dissolved firm would be competent in spite of the provisions of sections 4 and 69 of the Partnershipt Act. He referred to the case reported in PLD 1966 SC 328.
13. ' Rasheed Alam, the respondent herein, had filed the suit claiming that he and the appellant had entered into partnership to carry on business under the firm name of "S.R. Engineering Automobile Experts" through an oral agreement. The appellant subsequently changed the firm's name in the "Star Engineering' and was continuing with the said business at the same premises. He, therefore, filed a suit against him, without impleading any of the two firms as defendants seeking a declaration that the business, that was being carried on by the appellant under the changed firm name, was in fact the business of the original firm. He further sought settlement of accounts relating to partnership business of the original firm. All these facts were denied by the appellant who claimed to be the sole proprietor of the first firm and the changed firm.
14. ' The suit in the circumstances mentioned above was filed by the respondent as a partner of firm "S.R. Engineering Automobile Experts" against the appellant in his personal capacity or at best as the sole proprietor of the firm known as "Star Engineering". The trial Judge on the basis of pleadings of the parties had framed 10 issues, out of which Issue No,6, "Whether there was any partnership between the plaintiff and the defendant and what is the name of the firm", appears to be the most important issue to determine the dispute between the parties. The trial Judge on the basis of examination of certain documents brought on record through evidence held that in fact no such partnership existed between the parties but the Appellate Judge on examination of the entire evidence both oral and documentary in juxtaposition held that partnership did exist between them.
15. In order to determine the existence of partnership among a group of persons section 6 of the Partnership Act, 1932 makes it obligatory on a Judge to have due regard to all the circumstances touching the relations between the parties as such as may appear from the facts brought on record. The Appellate Court in following the rule embodied in section 6 of the Parntership Act, 1932 clearly determined the existence of partnership between the parties. Nothing has been pointed out by the Advocate for the applicant to enable this Court to disturb such finding of facts by the Appellate Judge in exercise of revisional jurisdiction under section 115, Civil Procedure Code. Once such a finding is recorded there can he no difficulty in filing a suit either for dissolution of a firm or for accounts of a dissolved firm or any right to realise the property of a dissolved firm as provided by section 69(3)(a) of the Partnership Act, 1932. The embargo provided in section 69(1) of the Partnership Act, 1932 does not extend to such a situation.
16. ' For the foregoing reasons I find no force in this application which is dismissed with no order as to the costs.