IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)
Appeal from Original Decree No. 205 of 1962
Decided On: 07.07.1971
Appellants: Ganga Sagar and Ors.
Vs.
Respondent: Province of East Pakistan
**Hon’ble Judges:**Abdul Hakim and Fazle Mumin, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: M.A. Aziz
For Respondents/Defendant: Siddique Ahmed Chowdhury, Senior Govt. Pleader
Subject: Contract
Subject: Property
Catch Words
Mentioned IN
**Acts/Rules/Orders:**Partnership Act, 1932 - Section 69, Partnership Act, 1932 - Section 69(2)
Citing Reference:
Mentioned
1
JUDGMENT
Abdul Hakim, J.
1. This first appeal is preferred against a judgment and decree dated 7-5-62 passed by the Subordinate Judge, Dacca, as an Arbitrator appointed under section 7(b) of the East Bengal (Emergency) Requisition of Property Act, 1948 in arbitration Case No. 212 of 1959 (257 of 1959).
- The petitioner-appellant is an unregistered firm and the opposite party-respondent is the Province of East Pakistan. The Government of East Pakistan acquired certain land of the petitioner-firm under section 5 of the East Bengal (Emergency) Requisition of Property Act, 1948. The District Magistrate, Dacca, assessed Rs. 7,281 as compensation for the said land but the petitioner-firm did not agree to that assessment and pressed for arbitration, claiming Rs. 40,000 as compensation and hence the present arbitration case.
The learned Judge dismissed the arbitration case on a preliminary point with an observation as follows:-
“There is no doubt that u/s. 69 of the Partnership Act no action can be brought by the partners suing as a firm unless the firm is duly registered under the Partnership Act. But no evidence as to registration of the petitioner-firm has been produced before me and as such I am unable to entertain the claim of the petitioner-firm.”
The case having been dismissed on preliminary point the learned Judge further observed:-
“That being so, it is not necessary to enter into the question whether the assessment made by the Govt. for the disputed land was just or not, and whether the petitioner-firm would be entitled to any further amount as compensation over and above the amount of Rs. 7,281 already paid as compensation for this land.”
We have persued the provisions of section 69 of the Partnership Act, 1932. The section runs as follows:-
“69. (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2). No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.
(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect,-
(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner.
Sub-Sections (1) and (3) quoted above have no manner of application to the case. Sub-section (1) contemplates only the suits by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm. Sub-section (2), however, speaks of suits by or on behalf of firm against any third party but this sub-section is confined only to suits to enforce rights arising from a contract and does not extend to the enforcement of rights not arising from contracts.
- The present case is one for realisation of compensation against land acquired under the East Bengal (Emergency) Requisition of Property Act, 1948. The case in question is a compensation case and not a suit to enforce a right arising from a contract. There being no existence of a contract between the petitioner-appellant and the opposite party-respondent, it is not clear how section 69(2) at all comes to play here.
In the absence of any contract between the contesting parties, the question of enforcing rights arising from a contract does not arise and so, in our opinion, section 69 of the Partnership Act has no manner of application to the case. The section puts bar only on particular types of suits and not to all kinds of suits.
- The arbitration case is, therefore, not hit by section 69 because it does not seek to enforce any right arising from a contract. Reference in this connection may be made to the case of Province of West Pakistan vs Messrs. Asghar Ali Muhammad Ali & Co. PLD 1968 Karachi 196.
The learned Subordinate Judge has misconstrued and mis-interpreted section 69 of the Partnership Act and wrongly applied it against the petitioner-firm. The order of dismissal is, therefore, liable to be set aside and it is accordingly set aside.
The appeal is thus allowed. The matter shall go back on demand to the same Court for disposal on merits in accordance with law.
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