M. ASLAM AWAN vs RAS TARIQ CHAUDHARY

' This Second Appeal impugns an order, dated 13-11-1975 of the learned Additional District Judge, Gujranwala, whereby he dismissed the first appeal brought by the present appellant against a decree, dated 27-1-1975 of the learned Civil Judge, Hafizabad.

2. The respondents sued as a firm for a declaration that they were occupying the shop in question and that an order of ejectment, dated 18-9-1969 passed against their father Malik Ali Bahadur was of no effect against them. It was resisted by the appellant-defendant pleading that Ali Bahadur alone had all along been running business in the shop and that the plaintiffs who were either employed or students were not at all occupying it. He added that in the course of rent proceedings, they had moved an application for being impleaded as a party thereto but it was turned down and hence the suit had been brought by them with the collusion of their father to render the order of ejectment ineffective. He further explained that a notice under section 30 of Displaced Persons (Comp. & Rehab) Act, 1958, was served upon Malik Ali Bahadur, but he never pointed out that the shop was even in possession of any firm constituted by his sons.

3. Appropriate issues were framed and the Courts below decreed the respondent's suit.

4. In support of the R.S.A., it has been urged that there had been gross misreading of the evidence, in that the respondents' own witnesses unmincingly conceded that the shop had been in possession of Ali Bahadur for 10/12 years and that the plaintiffs-respondents were either minors or students or had gone abroad. The plea was not without force. It was clearly admitted by Muhammad Ismail (P.W.2) and Muhammad Din (P.W.3) that the shop had been in possession of Ali Bahadur and further that his sons, namely, the present respondents were either students or employed elsewhere or had gone abroad. Obviously with this evidence in hand, there could be no conclusion that the shop was in possession of the respondents-firm. Indeed any such conclusion could be the result of misreading of evidence and perverse in nature.

5. Mr. Ras Tariq on behalf of the respondents supporting the concurrent findings of the Courts below submitted that the appellant's own testimony showed that Ali Bahadur was in possession of another shop situated towards the east of the impugned one. Abdul Hameed (D.W.3) no doubt made a reference to this fact in his cross-examination but the tenor of his statement does not show that he was excluding the possession of Ali Bahadur over the impugned shop. Earlier, in his examination-in-chief he pointedly mentioned that when he purchased the shop in question from S. Ahmad, it was Ali Bahadur who occupied it and that he was occupying it till then. One could see that perhaps he was making a reference to the past when All Bahadur might have been in possession of another shop in the east but that did not categorically exclude his possession altogether over the shop in dispute. The evidence in this context also seems to have been misread.

6. The onus lay on the respondents to prove that they occupied the shop in their own right as a firm but their witnesses unmistakably conceded that instead their father was in possession for 10-12 years. Even if in the course of time, something was styled as a firm consisting of Ali Bahadur's sons, it should not make any difference. It may just be a cloak, all the more when they did not adduce any document as to its constitution of registration, nor was it set up by Ali Bahadur in reply to a notice served upon him to attorn. Besides Ali Bahadur resisted his ejectment even by performing an appeal. Thus, the statement of Abdul Hameed D.W. 3, was unduly misconstrued in that context whereas the basic onus being on the respondents was not at all kept in view.

7. The suit was brought by a firm. There was no mention if it was registered. An unregistered firm could not bring a suit under section 60 of the Partnership Act, 1932. It was contended that such an objection could not be taken in second appeal for the first time as it was a question of fact.

Reliance was placed upon Sheikh Muhammad Ibrahim & Sons vs. Behari Lal-Beni Pershad AIR 1938 Lah. 96 and Muhammad Bashir v. Mst. Ghulam Fatima PLD 1953 Lah. 73 in this behalf. The facts of these authorities cannot be assimilated to those of the case in hand where there was a background of collusion between father and sons and the idea behind was a nullify an order of ejectment passed against the former. The sons took up the cudgels of course quite late to booster up their status as a firm though they should have known the law that an unregistered firm could not sue even the third person. If they withheld the inference would be that they were trying to hoodwink the provision of law. They did not come with clean hands to claim discretionary reliefs of declaration/permanent injunction against the landlord who had to work hard to obtain an order of ejectment against their father. To my mind, the commission was deliberate and section 69 ibid fully applied in their case.

8. It was argued that the suit was barred if it related to a "contract" and that since the respondents had never entered into any contract with the appellant, they were free to bring the suit. I regret I have a different impression. The respondents' case was that they had entered this shop under its old owner Sh. Ahmad Haroon, from whom the present appellant purchased it. As a successor owner he would eminently be a privy to the contract. Lastly counsel canvassed that the "contract" should relate to the business of the firm and not to taking any premises on lease. There was no warrant to restrict the meaning of the expression which was wide enough to include a contract by a firm to hire a shop. This is how section 69 ibid applied to bar the suit.

9. I feel constrained to disagree with the Courts below, accept the appeal, set aside the judgment/decree under appeal and instead dismiss the respondents plaintiffs' suit with costs throughout. The circumstances of the case fairly justify to award compensation under section 35- A, C.P.C. as the suit was claimed to be collusive between the father and the sons. Accordingly, they shall pay a sum of Rs.5,000 (rupees five thousand only) as such compensation to the appellant.