P L D 2002 Karachi 315 (PLP)

(c) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑

0. VI, R.17, VII, R..11 & OXXX, R.10‑‑‑Limitation Act (IX of 1908), S.3‑‑‑Plaint, rejection of‑‑‑Amendment in plaint‑‑‑Suit was filed by proprietary concern in the year 1996‑‑‑Defendant raised a plea that the suit was not maintainable under OXXX, R.10, C:P.C. and the same was liable to be rejected‑‑‑Plaintiff sought amendment in plaint‑‑‑Validity‑‑‑Any amendment at such belated stage being hit by the provisions of S.3 of the Limitation Act, 1908, could not be allowed‑‑‑Where the suit was not maintainable at the time of institution, amendment could not be allowed to make the proceedings in the suit so as to make it maintainable resulting in change of the character of the suit by introducing new plaintiff for which no application was made by the party‑‑‑High Court declined to allow amendment in the plaint‑‑‑Plaint was rejected in circumstances. G.M. Salem for Petitioner. Safdar Hussain Shah and Tahawur Ali Khan for Respondents. Date of hearing: 24th December, 2001. The plaint in this suit for damages is instituted by M/s. M.A. Majeed Khan described as "a sole proprietary" through ~ s proprietor M.A. Aziz Khan. The plaint in this suit is filed in the name of a proprietorship firm. Rule 1 of Order XXX, C.P.C. provides that any two or more persons claiming or being liable as partners and carrying on business, in Pakistan may sue or be sued in the name of the firm, if any, of which such persons were partners at the time of accruing of the cause of action. Order XXX, Rule 10, C.P.C. provides that 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. Comparative study of Order XXX, Rule 1, C.P.C. which deals with suits by a.partnership firm permits filing of suits by or against a partnership firm whereas Order XXX; Rule 10, C.P.C. which deals with suit in the name of the proprietary concern specifically provides only for filing of suits against a proprietary concern in its name but does not provide for filing of a suit by a proprietary concerts as it does not have any legal status/character as distinct from its proprietary. Thus, a proprietary concern can be sued in its name but it cannot sue in its own name see Ismail Haji Sulaiman v. Messrs Line and another (PLD 1961 Dacca 693), Habib Bank Limited v. Iqbal I. Chundrigar (1983 CLC 1964) and Ahan Saz Contractors v. Pak‑Chromical Limited (1999 MLD 1781). In view of the case‑law laid down in the case of Messrs Ahan Saz Contractors v. Pak. Chromical Limited (1999 MLD 1781) and the Collector of Customs v. Imram Enterprises (2001 ..C 419). It has been settled law that a plaint cannot be instituted in the name of a proprietor firm which is hit by the provision of Order XXX, Rule 10, C.P.C. The suits instituted by individuals and juristic person are covered by specific provisions in pursuance to the rule against "perpetuatory" and at the same time setting out perpetuity for providing the continuation of the suit even after expiry of the parties. Likewise in suit‑ against corporation the procedure specifically provides for continuation of suit by the ‑official E liquidator in case of companies and for partnership firms in the manner as provided under the provisions of Partnership Act which is in conformity with the public policy. In case of a proprietary concern as the law specifically bars the institution of suit in name of firm carried by persons other than their own name under provisions of Order XXX, Rule 10, C.P.C. Similarly, no such procedure is provided and continuation of proceedings will only lead to legal complications. This suit was fixed for arguments yesterday when Mr. G.M. Salem, learned counsel for the plaintiff was specifically required to address the Court on the point of maintainability of this suit. Today, after going through the file Mr. Salem learned counsel made request for amendment in the plaint. The suit was instituted in 1996 and any amendment at this stage besides being hit by the provisions of section 3 of the Limitation Act cannot be allowed. The suit filed was' not maintainable at the time of institution and C amendment cannot be allowed to make the proceedings in the suit that is not maintainable at the time of institution so as to make it maintainable resulting in change of the character of this suit by introducing a new plaintiff for which no application was made by the party. In view of the above discussion the plaint is liable to be rejected under the provision of OrderVII, rule 11, C.P.C. Order accordingly. Q.M.H./M.A.K./M‑315/K Plaint rejected