' The plaintiff Muhammad Ashraf has filed Civil Suit No, 237 of 1994 against defendant Abdul Majid.
The brief and relevant facts of the suit are as under:-- "1. That the plaintiff and the defendant entered into a Partnership Agreement/Deed dated 21-10-1991 at Karachi. Under the said Partnership Deed the parties agreed to carry on partnership business under the name and style of `M/s. HOSIERY KNIT WEAR INTERNATIONAL', at D-156 (Chowdhry Compound, Opposite Usman Textile Mills) S.I.T.E., Manghopir Road, Karachi. The salient and relevant features of the said partnership agreement are as under:--
(i) The business of the partnership firm shall be knitting of fabric and other allied items, initially.
(iv) Dispute or difference, if any, arising between the partners in respect of the partnership business or interpretation of the terms of the Partnership Deed, will be referred to arbitrator and the award of such arbitrator shall be ftal and binding upon the partners."
2. That the defendant failed to provide his half share towards the said capital of the partnership firm and pursuaded the plaintiff to arrange the entire capital of the partnership firm with promise that the defendant would bring in his said share afterwards. As such the plaintiff had to contribute the said entire capital for the partnership firm and the required two knitting machines were purchased out of such funds of the plaintiff. Subsequently the defendant also usurped the total control of the partnership business to the exclusion of the plaintiff. Eventually the defendant started misappropriating and misusing the incomes and profits of the partnership firm and also grabbed the control of the properties/assets particularly the said two knitting machines so installed at the said premises of the partnership firm."
The plaintiff prays that this Court may be pleased to direct the defendant to file Arbitration Agreement in this Court and thereafter may further be pleased to refer various disputes so having arisen between the parties with respect to running of partnership business, its affairs, rendition of partnership account for arbitration and thereafter eventually dissolution of partnership firm according to the terms of Partnership Deed dated 21-10-1991.
2. The defendant was served who filed the written statement dated 17-5-1994 through his advocate Mr. Muhammad Akhtar Saeed. On 25-4-1994 on hearing of C.M.A. No, 1887 of 1994 this Court vide its order dated 25-4-1994 passed the following order:-- "Interim injunction has been granted earlier but no counter affidavit has been filed and none is present to oppose the application. As such the application is granted and defendant is restrained as prayed in the application."
3. On hearing of C.M.A. No, 1888 of 1994 and Nazir references dated 20-4-1994 and 2-5-1994 the Court passed the following order:-- "No counter-affidavit has been filed to this application and, as stated above, none is present to oppose the application. The application is granted and the Official Assignee is appointed Receiver with direction to take over the aforesaid premises/business concern, prepares an inventory of all the machineries and articles lying inside the premises and seal the premises and appoint one Chowkidar. The fee of the Receiver will be determined later. For the time being, the plaintiff will deposit with the Official Assignee/Receiver a sum of Rs,5,000 to meet the expenses. The counsel for plaintiff will get in touch with the Official Assignee/Receiver for compliance of the order.
3. The two references of the Nazir may be taken on record for future reference."
4. In compliance of the Court orders, the Official Assignee took over the possession of the premises/firm Hosiery Knit Wear International, at D-156 (Chowdhry Compound, Opposite Usman Textile Mills) S.I.T.E., Manghopir Road, Karachi. The firm was locked and sealed and one Chowkidar was appointed to look after the same.
5. Mr. Khalid Athar learned counsel for the applicant has moved this application, with the abovementioned background giving the facts therein as follows:- "1. That the applicant is the tenant of one Mr. Naseem Ahmed son of Late Choudhry Iqbal, Muslim, adult, resident of D-156, S.I.T.E. Karachi, who let out his shed No, 12-D-156, S.I.T.E., Karachi with its fixtures, fittings and with office premises on the monthly rent of Rs,5,000. The tenancy agreement was duly executed on 8-7-1993 and it was for 11 months and further this agreement was extended vide agreement dated 29-5-1994 for another 11 months ending by 7-5-1995.
3. That the applicant is dealing in business of manufacturing the knitting clothes and the applicant is working for the other businessm en on the basis of contract 'over-rate'. The parties are supplying the thread of yarn and the applicant after knitting the clothes is supplying back to the parties the whole cloth is of an export quality.
4. That the applicant for the purpose of knitting the clothes had installed a knitting machine namely "PAILUNG KNITTING MACHINE", the same was purchased from M/s. Union International (Pvt.)
Ltd.
5. That there are lying 2000 K.G. Yarn threads in 200 bags of different parties for knitting the cloths and that cloths were to be delivered within two days but some persons from the office of Official Assignee under the directions of this Honourable Court came at the site of the Shed No, 12-D-156 and without any prior notice or explanation and/or without showing any reason sealed the whole premises of the factory. The applicant is running the factory in the name of S.Y. Knitting.
6. That the factory premises belongs to Mr. Naseem Ahmed son of Late Choudhry Iqbal which is evident from the Annexures 'A' and 'B' and the defendant Abdul Majeed the J.D. And or any other person or persons have got no concern whatsoever with the premises in question and it seems that the premises have been sealed under the wrongful impression that the factory or the premises or the land belongs to the JD. This act of sealing has caused 25,000 rupees daily losses and future business also be expected to be ruined."
6. The contentions of Mr. Khalid Athar learned counsel for the applicant are that (i) Muhammad Saleem Intervenor is the tenant of Naseem Ahmed, (ii) the official assignee has wrongfully sealed the premises, (iii) ownership of Naseem Ahmed is proved through letter dated 3-5-1992 issued by S.I.T.E. (iv) Muhammad Saleem is running the factory, (v) there is no proper look after of the property and (vi) the act of sealing the premises without notice is an illegal act, ultra vires and void ab initio therefore it is required urgently to deseal the factory so that several employees should not be adversely affected.
7. I have heard Mr. Muhammad Athar Saeed on behalf of defendant Abdul Majid who has contended that (i) it is not known at which place the firm is working, (ii) partnership is dissolved, and (iii) limited company is flouted on 9-1-1992 at Karachi vide certificate of incorporation No, K- 033354.
8. Abdul Majeed defendant in his written statement vide para. 3-B has stated as under:-- "3-B.That when the plaintiff and the defendant decided that it was not possible for them to do business due to the losses which were accruing they decided to voluntarily liquidate the above company and all the papers necessary for the liquidation were prepared but unfortunately due to some reason, the liquidation process could not be initiated."
9. At the time of argument it was pointed out by Mr. Muhammad Athar Saeed that copies of annexures marked as "C" and "D" and "E" and "F' have not been filed with the written statement as shown therein. Furthermore no any document has been annexed with the written statement.
10. Mr. K.B. Bhutto learned counsel for the plaintiff has contended that (i) the firm is situated at D- 156 (Chowdhry, opposite Usman Textile Mills) S.I.T.E., Manghopir Road, Karachi, (ii) plaintiff has been deprived of his business and (iii) partnership deed vide clause 18 shows "In case of differences or disputes, arising between the partners in respect of the partnership business or interpretation of any of the clause of this deed of partnership, the same will be referred to any arbitrator under the Arbitration Act and the award of such arbitration shall be final and binding upon all the partners.
11. Deputy Nazir was appointed to make inventory vide this Court order dated 17-4-1994 and report of the Deputy Nazir and Nazir dated 20-4-1994 was taken on record.
12. Abdul Majeed defendant filed the written statement in the Court on , May 1994. No counter- affidavit or objection to the Deputy Nazir's report has been filed. Facts of partnership business are not disputed at this particular premises. Documents marked Annexures "C, D, E and F mentioned in the written statement are not filed. Thereafter advocate of the plaintiff despatched a registered letter to the defendant's advocate to supply copies of the documents but the documents have not so far been supplied.
13. I have gone through the material placed on the record and have alio applied my mind. It is an admitted fact that the plaintiff and the defendant entered into a partnership agreement and agreed to carry on partnership business under the name and style of M/s. Hosiery Knit Wear International, situated at D-156 (Chowdhry Compound, opposite Usman Textile Mills) S.I.T.E., Manghopir Road, Karachi.
14. According to para. 18 of the partnership deed in case of difference of dispute arising between the partners in respect of partnership business the parties have to refer the matter to arbitrator under the Arbitration ' Act and the award of such arbitration shall be final and binding upon all the partners.
15. In view of said clause of partnership deed the plaintiff has filed this suit. It is strange to note that even though the defendant was served and at one stage one learned counsel appeared in the Court and undertook to file Vakalatnama but no one appeared and contested the application. This Court vide its order dated 30-10-1994 has allowed the application after service of the notice moreover no any counter-affidavit was filed by the defendant in the above application. The learned counsel for the applicant has moved this application under section 151, C.P.C. I would like to reproduce the actual words of section 151, C.P.C.:-- "151. Saving of inherent powers of Court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
16. As mentioned earlier this Court passed the orders confirming the ad interim injunction and appointing Official Assignee as receiver, after service of proper notice on the defendant and in the absence of any counteraffidavit/objection by the defendant. It is also very pertinent to note that office has taken the written statement of the defendant on 17-5-1994 which is also signed by the learned counsel for the defendant but the documents mentioned in the written statement are not annexed with it. In the absence of any proper documents mere denial of the defendant from the partnership deed is hardly to be accepted.
17. The application moved by the intervenor Muhammad Naseem appears to be prima facie an unwholly alliance in between the intervenor and Abdul Majeed defendant, so that unnecessary handicaps and hurdles be created in the suit filed by the plaintiff.
18. In view of the facts and circumstances as discussed above the provisions of section 151, C.P.C. In any case are not applicable so far this application is concerned, neither this application is necessary for the end of justice nor there is any material so as to prevent the abuse of the process of the Court.
19. The application is afterthought, misconceived and merits no consideration, and is hereby dismissed.
' I would like that Additional Registrar (Original Side) should hold an enquiry as to how the documents marked as Annexures "C" to "F" with the written statement filed by the defendant Abdul Majid were not taken into possession by the office. The official responsible for this negligence should be taken to task.