1994 PLP 2284 (CLC)

(3) Whether any cause of action accrued to the plaintiff? (4) What should the decree be? Evidence in the case was recorded through Local Commissioner Mr. Abdul Ghafoor Shaikh, Retired District and Sessions Judge. The plaintiff Gulab M. Rang examined himself, while the husband of Mst. Tayaba appeared as defendant No. 1's witness No. 1 was examined on behalf of defendant No.2. After hearing the plaintiff as also Mr. M.M. Pirzada, learned counsel for the defendant, I have reached to the following conclusion: It is submitted by the learned counsel for the defendant No. l that the suit is bad for non joinder of necessary parties. It is contended that all the partners including the wife of the plaintiff Gulab M. Rang were responsible for the liabilities, if any, of the defendant firm. As such all the partners were the necessary party and thus suit was bad for non joinder of necessary and proper party. Mr. Gulab M. Rang plaintiff urged that it was not necessary that a registered firm should sue or be sued through all the partners. He contended that it is settled law that the partners of a firm are jointly as well as severally liable for all the acts of the' firm done during the time when he was a partner. He further submitted that under Order XXX, Rule 1, C.P.C., the plaintiff is not debarred to make his choice as to whether he wants to sue all the partners of the firm or some of them. Mr. Gulab M. Rang further contended that Order 1, Rule 9, C.P.C. provides that no suit shall be defeated by reason of the misjoinder or non‑joinder of the parties and the Court may in every suit deal with the matter in controversy so far as regards the right and interest of the parties actually before it. Reliance is placed on M/s. Combined Enterprises v. Water and Power Development Authority, Lahore (PLD 1988 SC 39) and Ch. Nazar Muhammad and others v. Shafiq Ahmed Khan and others (PLD 1963 (W.P.) Lahore 23). I find much force in the contention of Mr. Gulab M. Rang. It is settled law that a registered firm can be sued or can sue through one of the partners as such this issue is decided against the defendants and it is held that the present suit is maintainable, as the firm in suit is a registered firm vide Registration Certificate Exh. P/ l . ISSUES N0.2 AND 3: Mr. M.M. Pirzada vehemently argued to establish that the plaintiff was in fact the legal advisor of the defendant firm. Mr. Pirzada tried to establish that the affairs of the firm were being jointly run by the plaintiff and defendant No.2 Akhtar Khan Niazi. That both of them were in possession of all the relevant record including the account books of the firm. Mr. M.M. Pirzada tried to establish that the present suit has been filed by the plaintiff in collusion with defendant No. 2 Mr. M.M. Pirzada further tried to establish that in fact the disputed amount was never advanced as loan to the defendant‑firm. On the other hand Mr. Gulab M. Rang submitted that there is no evidence to show that he was legal advisor of the defendant‑firm, or that he even managed the affairs of the defendant‑firm alongwith defendant No.2. He also contended that there was no evidence to the effect that account books ever remained in his possession. He contended that it makes no difference if his wife was one of the partners of the defendant‑firm, as he advanced the loan to the aforesaid firm in his personal capacity. That defendant No.2 Akhtar Khan had stood surety for the re‑payment of the aforesaid loan. I find that the contentions of Mr. Gulab M. Rang are supported by the evidence on record. The most important piece of evidence is a letter dated 25‑4‑1990 Exh. P‑3 which was written by Mrs. Tayaba Begum to the remaining partneps of the firm. Besides the other contents of the letter, the contents in respect of the disputed loan are reproduced as under:‑‑ "In addition to the above amount paid by me to the bank, it is understood that there are also other loans against Coastline, these are: A Mr. Gulab Rang Rs.130,000 B Major Akhtar Niazi Rs.88,978 C Repair Charges Rs.350,000 Total:‑ Rs.568,978 Mst. Tayaba Begum's husband General (Retd.) Haq Nawaz Malik who appeared as witness on behalf of defendent 1, admitted in cross‑examination that the letter Ex. P‑3 is signed by his wife Mst. Tayaba Begum. The claim of the plaintiff also gets support from the written statement of defendant No.2 Akhtar Khan Niazi who admitted all the averments in the plaint. In this view of the matter, I have come to the conclusion that strong evidence has been produced by the plaintiff that the disputed amount was advanced by the plaintiff as loan to the defendant‑firm, and Akhtar Khan Niazi defendant No.2 had stood as guarantor for the repayment of the aforesaid loan. Both of these issues are decided in favour of the plaintiff. In view of the findings, the suit of the plaintiff is hereby decreed as prayed for against both the defendants with costs. The defendants jointly and severally are directed to pay an amount of Rs.1,30,000 with interest of 15% per annum w.e.f. 15‑11‑1987 till the recovery of amount. The defendants are also to bear the costs of this suit. A.A./G‑374/K Suit decreed