P L D 1996 Quetta 28 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑The State Bank of Pakistan feeling aggrieved from the order, dated 27th February, 1995, has filed Civil Revisions Nos. 120 and 121 of 1995. As both the matters involve identical question of law, therefore, we have proposed to dispose them of, by this common judgment. Facts of the case are that appellants filed two suits for the recovery of money against Sabir Construction Company, a Registered Partnership Firm. On account of the death of Muhammad Sharif, one of the partners of firm, during pendency of suit, instead of bringing other partners on record, heirs of the deceased named above, were impleaded as party. The trial Court decreed both the suits by passing a consolidated judgment on 6th May, 1989, mainly on the ground that legal heirs of Muhammad Sharif, though raised objection on the maintainability of suit, but as no evidence was produced to prove the contention, therefore, the decree is being granted. Accordingly Mst. Zahida Bano widow of Muhammad Sharif filed R.F.As. Nos.25 and 26 of 1993, challenging the decree of trial Court. Matter was heard, during course whereof, learned counsel appearing for parties agreed for its disposal with consent, on following terms:‑‑ (1) That the impugned judgment and decree may be set aside and the case may be remanded to trial Court. (ii) That the plaintiff‑bank may be allowed to implead all necessary and proper parties as required by law subject to all just exception. (iii) That the trial Court may be directed to decide the matter afresh in accordance with law. (iv) That the appellant shall provide the names of all the legal heirs of late Muhammad Sharif. The legal heir of I Muhammad Sharif may file an application for their deletion if provided for by law. In view of the above settlement, both the appeals, were disposed of on 9th March, 1994 and case was remanded to the trial Court. It appears that in pursuance of clause IV of the arrangement, reproduced above, legal heirs of late Muhammad Sharif submitted application under Order 1, Rule 10, C.P.C. for deletion of their names. Learned Judge in trial Court conceded to their request and vide impugned judgment, dated 27th February, 1995, passed in both the suits separately, directed for the deletion of their names. As such, instant appeals have been filed. Mr. Shakeel Ahmad, Advocate, appeared on behalf of petitioner and contended that as the heirs of Muhammad Sharif have already been brought on record, therefore, the trial Court had no justification to delete their names. Mr. Sarwar Javed, counsel for respondents did not appear despite service It was pointed ‑out to petitioner's counsel that according to Order XXX, Rule 4, C.P.C., a firm is required to be sued in its juristic capacity and if there is a charge against personal property of any of the partners of Director, then on his demise the legal heirs shall be made as party. Otherwise, there is no necessity to join them in proceedings. Learned counsel, however, did not agree with the proposition and insisted to allow respondents Nos.2 to 5 to continue as defendants‑respondents because they have already been impleaded as party. We have carefully perused the relevant provision referred to hereinabove, according to which, if a partner dies before the institution or during the pendency of suit, it is not. necessary to join, his legal representatives, as party to the suit. An identical question came up for consideration in Mattress Canji Matani and others v. Ibrahim Fazal Bhai AIR 1927 Bom. 581, T.M. Yousuf and others v. Muhammad Saadullah Badshah Sahib AIR 1929 Madras 733, Ram Nari and Kishan Dial v. Ram Parsad and others AIR 1931 Allahabad 65 and Gaja Nand v. Sardar Mall and another AIR 1961 Rajasthan

223. Mr. Shakeel Ahmad, Advocate, could not show from pleadings of parties that State Bank of Pakistan (plaintiff) has filed a suit claiming relief against the partner of firm from their personal property. Therefore, in view of the substantive law Order XXX, Rule 4, C.P.C. and precedents referred to hereinabove, it is concluded that absence of a charge on personal property of a partner of a registered firm, on account of his death before or after instituting a suit, his legal representatives are not to be impleaded 'as defendants and the suit shall proceed against the firm through its other partners. Thus, in view of what has been stated above, we see no force in the petitions, which are dismissed, leaving the parties to bear their own costs. A.A./566/Q Revision dismissed.