NAJAB KHAN Versus COL. SAID SHAH

ORDER

MUHAMMAD AFZAL CHEEMA, J.‑ A firm of contractors working under the name and style of Najab Khan & Brothers obtained three contracts for con struction of roads in Mardan District between May, 1968 and February, 1969. There was no written partnership deed but according to the respondents, the petitioner, the two respondents and one Feroz Khan were the share‑holders, of whom Feroz Khan left earlier and is not a party to this litigation. It appears that Najab Khan and his brothers had already formed another firm Najab Khan & Brotners with its Registered Office at Karachi. Since Najab Khan mostly stayed in Karachi, the work of ; the three contracts mentioned above of which we are primarily concerned with the third contract was look ed after by Mir Hassan respondent No. 2 as an agent of the firm, He carried out the work, issued and received cheques, maintained and operated accounts with different banks on behalf of the firm. Before the completion of the third contract pertaining to the construction of Gaddar‑Shah Dhand Khat Killi Road differences arose between the parties who are otherwise, related inter se and the petitioner cancelled the agency of Mir Hassan respondent and intimated the Deputy Commissioner, Mardan, the Muslim Commercial Bank, Mardan, in which the account was maintained as also Mir Hassan himself. The rest of the work was carried out by the petitioner who received final payments from the Department.

2. On 4‑3‑1971, the respondents brought a suit against the petitioner for rendition of accounts. Having overruled some preliminary objections as to the competence of the suit etc., the learned trial Judge found issue No. 3, namely, as to whether the plaintiffs were partners with the defendant in the disputed contract and as such entitled to rendition of accounts in favour of the plaintiff ‑respondents and granted a preliminary decree in their favour, vide judgment dated 25‑11‑1972. Feeling aggrieved, the petitioner preferred an appeal before the District Judge, which was dismissed, ride order dated 30‑1‑1973. A revision filed by him was also dismissed by a learned Single Judge of the Peshawar High Court giving rise to the present petition for leave to appeal.

3. The position taken up by the petitioner throughout the litigation was that in fact the contracts were obtained in the name of Najab Khan & Brothers which had its Registered Office at Karachi of which Mir Hassan and Said Shah were not the shareholders, that Mir Hassan was appointed merely as an agent of the firm whose appointment was subsequently cancelled by Najab Khan and as such the plaintiff‑respondents had no cause of action or locus standi to bring the suit for rendition of accounts. These contentions were not found to be established and were consistently overruled by the Courts below.

4. In support of the petition, learned counsel vehemently contended before us that the concurrent finding of the Courts that the respondents were share‑holders with the petitioner in the firm which had obtained contract for the construction of the road, and as such entitled to rendition of account was based on misreading of evidence. Great emphasis was laid in this regard on the letters addressed by the petitioner to various authorities as well as to Mir Hassan purporting to show the cancellation of his appointment as agent of the firm. Again relying on some observations in the statements of Mir Hassan appearing as his own witness at the trial, learned counsel contended that on his own showing Mir Hassan laid claim to a specific amount of Rs. 32,200 and as such the suit for rendition of accounts was not maintain able. He further argued that in case the contract for the construction of roads had been taken by a firm different from Najab Khan & Brothers which had its Registered Office at Karachi and of which the respondents claimed to be the share‑holders, it should also have been registered, of which there was no evidence on the record.

5. We are not impressed by the contentions. The letters of authority and their cancellation forming the basis of the petitioner's case cannot be considered in isolation torn away from the context. Nor can exception be taken to the maintainability of the suit for rendition of accounts merely because respondent No. 2 while trying to establish his share in the partner ship business explained the position of accounts as it stood at the relevant time. The concurrent findings given by the Courts below are based on a correct appraisal and interpretation of oral as well as documentary evidence such as Exh. P. W. 9/5, Exh. C. W. 1/1, Exh. C. W. 1/2, Exh. C. W. 1/3 and 4 Exh. C. W. 1/19. Considering the entire evidence in its proper context, we are convinced that it fully sustains the concurrent findings given by the three Courts below on the questions involved, which are primarily of facts.

6. No case is, therefore, made out for the interference of this Court. The petition is accordingly dismissed.

Petition dismissed