I. MAHMUD, J.-This is a Letters Patent Appeal from the judgment and decree passed by a Single Judge of the High Court on the Original Side (Qadeerude in Ahmad, J. As he then was) dated 30th November 1956, whereby .The appellant's suit against the respondent was dismissed upon the decision on one of two preliminary issues that the suit fled by the appellant alone to .Recover a claim of his partnership firm was not maintainable in view of section 45 of the Contract Act. 1872.
2. The facts, briefly, are that appellant, Ahmad Bon of Abdullah, describing himself as Bile proprietor of "Messrs Abdul Latif Abdul Shakoar Madraswala", bled a Suit (No. 160/64) on 4-11-1964 on the Original Side of the High Court against "Karachi Steam Navigation Co. Ltd. The respondent for recovery of Rs 28,429.55 as damages for short-landing and damake to a consignment of begs of tumeric delivered to the respondent at Chittagong for carriage to Karachi in its vessel s. s. "Pakistan Prosperity" under a bill of lading dated ?5-3-1964. The respondent resisted the suit of the appellant and pleaded exemption from liability under the terms and conditions of the bill of lading. While giving evidence as the sixth witness in support of his case, the appellant was confronted in cross- examination by the respondent's counsel with Exh. 38, which was a letter dated Vth July 1964 addressed to the respondent by the appellant on the firm', printed letter head demanding payment of Rs. 28,429.55 as damages for loss of cargo. This letter was signed by the appellant on behalf of the firm as partner, but the word 'partner' was scored off in Ink and it was replaced by the word 'proprietor'. Where con--fronted with this letter, the appellant admitted that there was a partnership in the name of Abdul Latif Abdul Shakoor Madraewala" but that it was dissolved in the year 1964. This witness was recalled and re-examined on an adjourned date, and then he produced a photocopy of the deed of dissolution dated 14th May 1964, Exh. 64/A. He stated that in terms of paragraph 4 of the deed of dissolution he had been given the right to recover the book debts, assets etc. Of the firm and that all disputes between the partners had been settled at the time of dissolution of the partnership. He further stated that the original deed of partnership had been produced by him before the Income-tax Department and that the firm was not registered under the Partnership Act. That it was constituted on 16.6-1961 and consisted of three partners. That is (besides himself). His brother Abdul Shakoor and Umar Abdul Shagoor, both of whom went away to India after the deed of dissolution was executed.
3. After the evidence of the parties was closed, the respondent moved an application for framing the following two additional issues, raising the Questions as to maintainability of the suit in view of the appellant's admission that an unregistered partnership subsisted on the date on which the goods were consigned in the respondent's ship at Chittagong for carriage to Karachi under the bill of lading dated 25-3-1964 :- "(1) Is the suit barred under the provisions of section 69 of the Partner--ship Act, 1932 ?
(2) Has the plaintiff Ahmad son of Abdullah the right to sue alone upon the contract in suit entered into by the firm Messrs Abdul Latif Abdul Shakoor Madraswala ?"
At about the same time, the appellant himself moved an application for amending para. 1 of the plaint by adding, inter alga, at the end of it, a state--ment that the appellant (plaintiff), by the deed of dissolution of the firm dated 14th May 1964, was entitled to sue In his own name and to collect all claims. Including the claim in suit and that he had acted on behalf of the firm in relation to the present claim during its currency and on his own behalf in terms of the dissolution deed. But the Court rejected the amend--ment application of the appellant on. The ground that the fact of dissolution of the partnership having been brought on record, the proposed amendment was not necessary and would not make any difference, besides being highly belated.
4. After framing the two additional issues above-mentioned, the learned Judge treated them as preliminary issues at the request of the cousel, and by the impugned judgment dated 9-1-1967 he dismissed the suit of the, appellant, holding on the second issue, that the appellant had no right to sue alone upon the contract in suit entered into by the firm with the respon--dent in view of section 45 of the Contract Act, 1872. The view of the learned Judge was that the deed of dissolution did not appeal to be a genuine document in the face of several circumstances which cast suspicion and that it made it extremely doubtful whether dissolution of the partnership did really take place.
Some of the circumstances adverted to by the learned Judge were, that the fact of dissolution of the firm was suppressed not only in the plaint but also in the appellant's examination-in-chief, in which nothing was stated about the firm, its dissolution or the acquisition by him of the right to recover the claim by virtue of the dissolution deed and that he was made to divulge it only in cross-examination ; that the deed, when produced, appeared to be suspicious as the stamp paper, on which it was written, was not pur--chased either in the name of the firm or any of its partners. Moreover, the appellant failed to explain his statement in paragraph 1 of his counter- affidavit dated 23-8-1965 (after the alleged date of dissolution) in which he had stated. That be was a partner of the firm.
5. On the first issue, however, the learned Judge held that no objection could be taken to the frame of the suit under section 69 of the Partnership-- Act, 1932, as there was no mention in it of the existence of a firm or of it& dissolution, or even that the appellant had acquired the right to recover the claim in suit.
6. When the present appeal came up for regular hearing before a. Division Bench on s-10-197'4, the Court suggested that the genuineness of the --deed of dissolution, Exh.
64. Could be tested by the income-tax assessm ent orders of the firm which would show whether "Abdul Latif Abdul Shakoor" was at all a firm prior to the alleged date of dissolution, while the orders for --the period subsequent thereto, would show whether this firm had been dissolved. Accordingly, the Court permitted Mr. Nasim Farooqi, learned counsel for the appellant to produce three income-tax assessm ent orders for the assess--ment years 1962-63, 1964-65 and 1965-66, which were brought on record as High Court Exhs. 1, 2 and 3. The genuineness, therefore, of the deed of dissolution has to tie decided in the light of this additional evidence of the --income-tax assessment orders, which have been brought on record by the Court under Order XLl, rule 27, C. P. C.
7. We have heard Mr. Nasim Farooqui, learned counsel on behalf of the: appellant and Mr. Hamza A.I, learned counsel on behalf of the respondent. The submission of Mr. Nasim Farooqui is that the learned Judge erred on the second issue in holding that the appellant's suit was incompetent in view of section 45 of the Contract Act, because in the absence of proof of dissolution of partnership, the appellant could not sue alone on the contract in suit which was entered into by the firm witty the respondent. According to counsel the learned Judge wrongly rejected the deed of dissolution (Exh. 64) as not, being a genuine document proving that the partnership had really been dissolved on 14th May 1964. There fore, the main question is whether the fact of dissolution of the partnership has been established by the, appellant.
8. The learned Judge disbelieved the deed of dissolution as being as spurious document because the appellant had concealed it and made no, mention of it in the plaint and was made to disclose it only in cross-examination and also because the frame of the suit and the facts pleaded therein which showed as if the contract in salt was entered into by the appellant personally with the respondent, were inconsistent with the fact of dissolution. There was also on file a contradictory statement made by the appellant in pare. 1 of his counter-affidavit dated 23rd August 1965 in which he had stated inadvertently that he was a partner of the firm. This is no doubt true, but the manner in which the body of the plaint was drafted did not alter the facts as proved in the evidence. It is the duty of the Court to consider and weigh the facts as proved in evidence. In his evidence, the appellant had admitted that there was a partnership, that it was dissolved on 14th May 1964, under the deed of dissolution and that he had acquired the right to sue and recover the claim of the dissolved firm. He produced the deed of dissolution which was signed by him and it was brought on record a9 Exh. 64 (the photo copy of which was earlier received as Exh. tA-A).
Therefore, under section 67 of the Evidence Act, the document and its execution stood proved. The fact of dissolution of the partnership is further supported by Abu Bakr (P. W. 7), the accountant of the appellant who was in service with him since January 1964. To a question by the Court as to when the partnership was dissolved, tore partnership was dissolved, he replied, "on the 14th day of May 1967 and that "there is a deed of dissolution ". He candidly admitted that the firm was not registered under the Partnership Act. The income-tax assessment orders which were brought on record in the present appeal as, High Court Exhs. 1, 2 and 3 fully support the fact of dissolution. The High Court Exh. I was an assessm ent order of the firm "Abdul Latif Abdul Shakoor" for the assessm ent year 1962-63. The order on the firm's application for registration under section 26-A, Income-tax Act, 1922, for that year stated that the partnership deed was executed on 16-6-'961 comprising of three Part--ners, The High Court Exh. 2 was the assessment order of Abdul Shakoor, one of the partners for the assessm ent year 1964-65 under which he was assessed on his share income from the partnership firm "Abdul Latif Abdul Shakoor". Finally High Court Exh. 3 was the assessm ent order of the appellant, Ahmad Abdullah for the assessment year 1965-66. He was assessed as proprietor of the said firm and the assessment order stated that "prior to this it was a partnership concern but due to dissolution of the firm, Haji Ahmad (appellant) continued the business in wholesale of kiryana and chemicals, both at the Head Office and Branch Office at Chittagong". In the light of the evidence, the fact of dissolution of the firm cannot be disputed and, in our opinion, the finding of the learned Judge to the contrary cannot be accepted. We also find no justification for the view expressed by the learned Judge that in the absence of any stated consideration in the deed of dissolution giving to the retiring partners consideration for the dissolution, 'he deed was to be construed as a power of attorney in favour of the appellant in order to enable him to file the suit, and not a deed of dissolution. The question of consideration for the dissolution between the partners was not an issue in suit and, in our view, the fact that the accounts of the partnership business had been stated "to have finally closed, mutually settled, agreed upon and signed by the parties", was in itself good consideration for the dissolution.
9. As we have held on the evidence that the partnership stood dissolved on 14-5-1964 before the suit was filed against the respondent, the appellant's suit must be considered to be a suit to realise the property of the dissolved firm. It was not barred under section 69 of the Partnership Act, 1932, for want of registration of the firm, to view of the clear provision of section 69 (3)(a)I of the said Act. 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. Sub--section (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. Bu 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 realise the property of a dissolved firm".
This appears clear frown plain reading of that provision. It was so held in Appaya Nijltngappa Hattargi and another v. Subrao Rahaji Tell and another AIR 1938 Bom. 108 ., Bhagwanji Morarji ,Goculdas v. Alembic Chemical Works Co. Ltd. And others AIR 1943 Bom. 385, Sohanlal Pachlsla & Co. v. Bilasray Khemani and others AIR 1954 Cal. 179, M. Ismail & Sons v. Trans Oceantc Steamship Co. Ltd. PLD 1966 Dacca 296 and Messrs Ch Allah Bus Moula Bux v. Messrs Aijaz Moula Bux and another PLD 1973 Kar. 468, where 0orab Patel J. (as he then was) has fully reviewed the case-law on the point.
10. Although tae present suit is not a suit by a dissolved firm, there is authority f 6r the view that a dissolved firm or am of its former partners may sue to recover the property of the dissolved firm without joining all the partners and Visit section 4 5 of the Contract Act, 1872 is not applicable to the enforce--ment of debts or claims of; trading partnership. It nag been held that because of mercantile customs. a contract wish a firm, by itself, manifests a contrary intention within the meaning of section 45 and the bar of section 45 does not apply, which provides that one of several joint premises cannot sue alone to enforce a promise jointly made to them all. In this connection, in the case of Mool Chand and others v Mul Chand and others AIR 1923 Lah, l97, it was observed that "the rule of law now seems to be firmly established that debts due to trading partnership stand on a different footing from debts due under ordinary contracts" and that section 45 of the Contract Act, 1872, has no application to debts due to trading partnership. The case-law on the point bas been fully discussed by Dorab Patel, J. (as he then was) in the case already cited of Ch. Allah Bux Mould Bux. The provisions of Order XXX. Rule 1, C. P. C. Also enable ore of the partners to sue in the name of the firm and Order XXX rule 4, C. P. C. Renders unnecessary the joinder of the legal representatives of a partner who dies before institution of the suit or during its pendency and expressly excludes application of section 45 of the Contract Act, 1872. The case of Jaffar Khan v.
Mohammad Achar PLD 1961 Kar. 335, relied on by the learned Judge and also by Mr. Hamza A.I, for the respondent, is clearly distinguishable. In that case, the plaintiff sued for breach of three contracts by the defendant, two of which were entered info by the plaintiff jointly with another who was not joined as co-plaintiff. There was no question that the c3ntracts were entered into by the plaintiff as partner of any firm and, therefore, the defen--dant's plea that the suit was barred under section 69 of the Partnership Act, wag rejected. But the defendant's plea under section 45 of the Contract Act, was upheld on appeal by the High Court and it was held that the plaintiff could not sue alone on the two contracts entered into by him jointly with another person without joining the other promisee as co---plaintiff.
11. Mr. Hamza A.I's next contention is that in the absence of a properly executed instrument of transfer, as provided in section 130 of the Transfer of Property Act, 1882, the appellant had no title to sue because title cannot pass by admission or relinquishment. In this connection, ha referred to Dharam Chand Bold v. Mouji Shahu 16 I C 440 and Messrs Devi Ditta Mal and another v. Sat Ram Das arid others AIR 1958 Pb.
52. These cases are clearly distinguishable, because they related to assignment of debts, which could not be transferred except by executing a proper instrument of transfer, whareas a mere right to sue cannot be transferred under section 6 of the Transfer of Property Act, 188 7. The firm bad a mere right to sue for damages for breach of contract by the respondent, which had not matured into a debt and, therefore. It could not be assigned under section 6 of the said Act. The contention of Mr. Hamza A.I is without any force.
12. For the foregoing reasons, we allow this appeal with costs and set aside the impugned judgment dated 30th November 1966. We, therefore, remand the case to the trial Court for decision on the remaining issues.