Date of Judgment . 1 0. 2 0 0 6 .
Plaintiffs: Messrs Building Stores and others through Mr. Mansoor-ul-Arfin, Advocate.
Defendants: Mohammad Hanif and others through Mr. Mumtaz Sheikh and Zamiruddin, Advocates.
On CMA No.3730 of 2006
MUNIB AHMED KHAN, J. This CMA u/o 7 Rule 11 C.P.C. has been filed by the defendant No.1 to 3 for rejection of the plaint on the following two grounds.
1. That the plaintiff No.3 is not a legal entity, hence suit in such capacity can not be filed. In support of this objection the learned counsel for the defendant has pointed out the title of the plaintiff in which the suit has been filed i.e.
Messrs Noorani Travels
A Proprietary Concern through
Its proprietor Mr. Saleem Nazar Ali
2. That plaintiff No.3 is a partnership firm in the name of M/S Noorani Travels which is in possession of the suit premises and this partnership firm is not party to the suit. To support this contention the defendant’s counsel has filed a certified coy of the application filed by the plaintiff itself in some rent proceedings.
On the first point the learned counsel for the defendant has argued that this suit has been filed by plaintiff No.3 in its business/trade name therefore, not maintainable as order XXX rile 10 CPC does not provide filing of suit in the name of proprietor ship concern. He has submitted that the above issue has been settled by several authorities and even by the judgment of this Court. The authorities relied upon by the learned counsel of the defendant are PLD 2002 Karachi 315, (Messrs M.A. Majeed Khan Vs. Karachi Water and Sewerage Board & others.) 1999 MLD 1781 (Messrs Ahan Saz Contractors Vs. Pak Chromical Limited) and 2001 CLC 419 ( The Collector of Customs Vs. M/s Imran Enterprises. All these authorities are on the point that the business / proprietary concern has no legal status or character as distinct from its proprietor. On the strength of these authorities the learned counsel has submitted that the suit which has been filed by the plaintiffs in its proprietary/business name, can not be maintained and be dismissed on that ground. He has further relied upon a recent DB judgment of this court in HCA No.35/02 (M.A. Aziz Khan Vs. K.W & S.B.)of which relevant para is as under:-
Indeed the view that a plaintiff can not bring a suit in the name of business that he is carrying on though he may be sued as a defendant in such name is unexceptionable. The rationale for such rule is also obvious in as much as a person suing the proprietor of a firm may only be aware of the trade name under which such business is being carried on. The real question for determination would be that when the appellant had substantially disclosed his identity and status as the sole proprietor of a particular business, was it merely a matter of mis-description or whether some vested right had accrued in favour of the respondent.
The gist of the arguments of the learned counsel for the defendants is that since the plaintiff No.3 has sued in proprietary name, which has no legal character, therefore, suit can not be maintained as the same is hit by order XXX Rule 10 C.P.C. as the said rule does not provide filing of suit under the trade name whereas it provide filing of the suit against the business/trade name.
To appreciate the above ground it is necessary to reproduce Rule 10 of Order XXX.
Order XXX Rule 10 C.P.C.
Suit against person carrying on business in name other than his own.--Any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules under this Order shall apply.
If carefully gone through the above rule it does not specifically prohibit filing of suit by a person in the name of business or trade. Now a days, when the trade/business names have gain much popularity and known to the general public more than the owners of the business viz a viz it has also been observed that the business/trade names have been registered with the income tax and sale tax authorities and these concern, in those names, have been dealt with accordingly. The opening of bank account in the business name is also in vogue. Sometime it happens that a defendant has to be transposed as a plaintiff in a suit and in that situation, the defendant, sued in terms of order XXX rule 10 CPC will be transposed as a plaintiff in whatever capacity it has been sued as a defendant. Although rule 10 above provides that such business name or style may be treated as a firm for the purposes of filing suit against them but is silent vice versa. Such facility apparently has been provided to a plaintiff intending to sue such business concern on the obvious ground that it may not be aware of the internal management of such business concern so it may take it as a firm. The question arises as to what will happen if a business concern, sued in its name, files a counter claim and succeed than naturally it will be treated as a plaintiff instead in subsequent proceeding of execution of decree which may be passed in its favour. In all the above circumstances the above Rule 10 needs more explanation and interpretation, but any how keeping in view the authorities quoted by the learned counsel for the defendant and the view coming out of it these authorities specially through the judgment in H.C.A. No.35/02, viz a viz no substantial arguments from the Plaintiff in rebuttal except that the application under order 7 rule 11 is much belated, the view on order 30 rule 10 is settled through the above authority. Anyhow, the arguments of the learned counsel for the Plaintiff that the application has been filed after much delay as in some proceedings some orders have been passed and specially in CP No. 593 of 2003, which has finally been disposed of and the Plaintiff has been represented in such petition in business name and that the matter has gone to the Hon’ble Supreme Court. It seems that the litigation is going on between the parties since 1979 and nowhere, except recently in CP No. 593 of 2004 or in this Suit now, this issue has not been raised. It shows that the defendant itself has given up it rights to challenge the legal status of the Plaintiff and has continued litigation in its name and that event its objection in that respect in CP NO. 593 of 2004 was not considered rather ignored. In principle, there must be some time limit for an act to be performed, keeping in view of the history of litigation, the defendant has been sleeping for more than decade and when the matter is coming for evidence while similar issue has not been entertained in CP No. 593 of 2004 then they cannot be permitted to raise this issue now in this suit at this much belated stage, therefore, their objection cannot be entertained and this objection is rejected.
In support of Ground No.2, the defendant has filed a photo copy of a certified copy in rent Case No.1613/1992 which is an application u/o 1 Rule 10 C.P.C. filed by M/S Noorani Travels as a partnership firm through its partner Salim Nazar Ali to intervene in that rent case. In the said application it has been stated that the inventors are in occupation of a portion of tenament on plot No.S.R-6/3 & 4 in their own rights and have been paying rent to the rent Collector i.e. the opponent in that rent case. He has further submitted that the plaintiff itself has disclosed his identity as a partnership firm in previous document filed in Court therefore, proprietorship has no right or cause of action to maintain this suit.
On the other hand the learned counsel for the plaintiff No.3 has filed objections through which it has been submitted that order 7 Rule 11 C.P.C. is not maintainable as it is not supported by affidavit and that the said application may be dismissed as it is based on self contradictions as in the Suit No.403/79 filed by the plaintiff No.3 as a proprietorship through its proprietor Saleem Nazar Ali, the defendant has raised no objection in written statement and has accepted such position through out the proceedings. He has further submitted that this application u/o 7 Rule 11 C.P.C. has been filed to side track the contempt proceedings initiated against the defendant by plaintiff No.3. It has further been submitted that the defendant has wrongly relied upon the certified copy as said was a result of internal development of the plaintiff No.3 in the year 1981 by which business of some travel agency was handled and secondly that the copy relied upon pertains to rent case can not be relied upon in the suit. It has further been averred that the defendant himself has issued rent receipts and specifically receipt No.5283 dated 01.10.1980 mentioning therein the name of tenant as M/S Noorani Travels, Proprietor Saleem Nazar Ali. Rejoinder to the above counter affidavit has been filed by one M.Haneef and contention in the counter affidavit has been denied. It has also been denied that the Saleem Nazar Ali is the proprietor of defendant No.3 and that no affidavit was required for an application u/o 7 Rule 11 C.P.C. It has further been stated that plaintiff No.3 is not a legal entity and the suit is not maintainable and that the copy of the application in rent Case No.1631 is a relevant document and that any development, as alleged during pendency of the suit, has not been disclosed in the counter affidavit and that defendant have never issued any rent receipt dated 01.10.1980 to M/S Noorani Travel as a proprietary concern or a partnership concern and that the said receipt was issued by the tenant Tar Muhammad Haji Jamal to a sub-tenant i.e. plaintiff No.3. Along with rejoinder the defendant has filed copy of Form-A and Registration Certificate issued by Registrar of Firms in the name of M/S Noorani Travels showing itself a firm with three partners.
To support the above contentions the defendant’s counsel has further argued that originally the suit was filed by six plaintiffs but with five plaintiff suit was compromised as they were given alternate accommodations in the newly constructed building, while the plaintiff No.3 has been continuing the suit and that the plaintiff claims to be a tenant through Tar Muhammad Haji Jamal, who has no right to rent out any portion of the building of the defendant. The learned counsel after relying upon the contents of his application has submitted that by change in the nature of legal status of the tenant it was a subletting. In this context he has relied upon 1994 SCMR 1507 which is on the point that when the tenant is entering into partnership in the business being run by him in the premises as a sole proprietor without consent of the land lord, would commit violation of section 15(2),(iii),(a) of S.R.P.O. The defendants counsel has further submitted that the copy of the plaintiffs own documents, filed by it in rent Case No.1631, belies its status as a Proprietorship as the same application was filed as a partnership, therefore, apparently its status has changed from tenant to sublettee who has no cause of action under a suit.
On the other hand the learned counsel for the defendant No.3 has argued that the suit has been filed in the name of proprietorship through Saleem Nazar Ali which has acquired tenancy right in 1978 and rent receipts in this respect have been filed and that for some business three brothers formed a partnership which was not meant for tenancy purposes and address given for the partnership is different which is apparent from the Form-A and Registration Certificate filed by the defendant themselves. He further submit that the litigation between the parties is going on a long way and no objection in this respect has ever been taken by the defendant in this suit earlier rather the defendant itself has initiated legal action in court in the name of proprietorship and by doing so the defendant has estopped from raising such objection under the law of estopple. He has further submitted that even before the Honourable Supreme Court status of the plaintiff No.3 has not been challenged and that for the first time the defendant has raised such an objection in C.P.No.593/04 but that objection was ignored as no finding has been given rather the wording used in the judgment is inclined towards the plaintiff and against the said judgment C.P.L.A. has been filed before the Honourable Supreme Court and on 04.9.2006 an order has been passed in that C.P.L.A. No.445-K to 447-K of 2006 wherein operation of the impugned order in C.P.No.593/04 has been stayed. He further submit that for the purpose of order 7 Rule 11 C.P.C. the contents of the plaint are to be seen and no extraneous documents is to be looked into and that copy of application in rent Case No.1631/92 relied upon by the defendant was never entertained by the Learned Court, therefore, the contents of that application can not be a conclusive proof in respect to the status of the plaintiff. He further submit’s that no objection has been raised in the written statement as has been raised in order 7 Rule 11 C.P.C. While the documents relied upon by the defendant pertain to the year 1992 and that the issues have already been framed in the suit towards its maintainability which shows that evidence is necessary to sort out the contention ascertained through the issues by the Court hence the application u/o 7 Rule 11 C.P.C. is not maintainable and be dismissed. He further submit that since the issue regarding status of the plaintiff raised in C.P.No.593/04 is now subjudice before the Honourable Supreme Court therefore, this Court should wait for the decision.
To support his contention Mr. Mumtaz Ahmed Shaikh has relied upon 1994 SCMR 826 (Jewan Vs. Federation of Pakistan) on the point that the Court while rejecting the plaint u/o 7 Rule 11 C.P.C. can not take into consideration the plea of defendant when such plea is disputed and denied by the plaintiff and that when the plea for rejection of plaint is based on some documents then until such documents are brought on record in accordance with law and the matter is thoroughly examined with regard to the controversy, the plea can not be taken as conclusive. Another authority 2001 CLC 899 (Cotecna Inspection SA Vs. Messrs Ismail & Co.) relied upon by the learned counsel for the plaintiff is on the point that no extraneous documents is to be seen except the facts alleged in the plaint. Another authority 1996 MLD 1541 (Ghafooran Vs. K.M.C.) deals with the matter that the record of another proceeding can not be made a subject for rejection of the plaint and the Court has to examine plaint and its accompaniment to reach the conclusion that plaint discloses a cause of action or not. Next authority 2002 SCMR 338 (S.M.Shafi Ahmad Zaidi Vs. Malik Hassan Ali Khan) relied upon by the plaintiff counsel is on the point that although other material beside averment of the plaints can be looked into but which should on its own strength, should be legally sufficient to completely refused the claim of the plaintiff in order to reject the plaint. The last authority relied upon is 2001 SCMR 953 (Muhammad Altaf Vs. Abdur Rehman Khan) in which it was held that the allegation leveled in the plaint in respect to fraud etc. could not be resolved without recording evidence, therefore, rejection of the plaint was not justified as the contents of the plaint presumed to be correct.
After hearing of both the learned counsel and going through the papers it has been observed that the parties are litigating since long i.e. for more than two decades in different proceedings and the plaintiff No.3 has been taken and represented in the capacity of proprietorship while one of its application to become a party in rent Case No.1631/1992 was not entertained and dismissed, which both the learned counsel of the parties admit. There is a further contentions of the plaintiff that the partnership concern has not been established for tenancy purposes but is for different business purposes and its office address is also different and not of the premises in question. It has further been noted down from the judgment in C.P.No.593/04 that the point of proprietorship and partnership was raised, which has been recorded in the following way.
“Respondent No.1 to 3 has challenged that the petitioner is neither proprietary concern nor Saleem Nazar Ali is its proprietor but Noorani Travels is a registered partnership having three partners which was registered on 17.8.1983 and the petitioner has no locus standi to file this petition. The petitioner while moving application under Order 1 rule 10 CPC on 24.7.1996 in Rent Case No.1631/92 out of which this petition has arisen had prayed that the petitioner may be joined as a party in the said rent case but the said application was dismissed. In the said application the petitioner has described that it is a partnership firm and Saleem Nazar Ali was described as its partner. The petitioner may claim himself as proprietary concern of M/S Noorani Travels, but he was never inducted as tenant by the original owner nor by the respondent No.4 (Tar Muhammad Haji Jamal) as the petitioner failed to bring any documentary proof regarding payment of Pagri of Rs.2,50,000/-”.
Against the above judgment C.P.No.445-K to 447-K has been filed and in that C.P. the Honourable Supreme Court has granted stay on 04.9.2006. It has further been observed that under the same very suit defendants have obtained benefits from five defendants by way of compromise with them but the defendants has raised objection in respect to the title of the plaintiff No.3 at this very late stage which can not be entertained until the evidence is recorded on issue already framed on that aspect. In different litigations the plaintiff has appeared as a proprietor and several orders would have been passed which will naturally be affected if at very late stage the issue in respect to the legal status as to proprietorship or partnership is entertained. Although the defendant has raised this issue first time in C.P.No.593/04 but it has not been entertained and has been left to discretion of the plaintiff to be represented in either way, it mean that the issue has been left undecided rather ignored which means that the issue was decided against the party raising the same. The defendant themselves are calling Plaintiff a subtenant then they should stuck up to that ground instead of finding its legal status. In these circumstances and relying upon the authorities submitted by the plaintiff, as they are suitable to the situation coming out of the case, I do not find any force in the contentions of the defendants that the plaint be rejected on the ground that the plaintiff has sued as a proprietorship instead of partnership. The result is that the application under order VII rule 11 CPC is dismissed.
J U D G E