P L D 1958 (W (PLP)

Chaudhri Atma Ram and others v. Mian Umar Ali A I R 1940 Lah. 256 and Mst. Jagpati Kuer v. ShakhdeP Prasand and another A I R 1942 Pat. 204 ref. This order will dispose of Revision Application No. 17 of 1954 and Revision Application No. 52 of 1954 as they are directed against the Judgment of the Small Causes Court in Suit No. 1466 of 1951, dated 2nd December 1953. The dispute between the parties relates to the supply of 2000 maunds of Sarsoon Oil Cakes. It appears that opponent No. 2 M/s. Peer Muhammad Haji Dawood agreed to purchase. 2000 maunds of Sarsoon Oils Cakes on cash payment from opponent No.

3. On 26th May 1950 opponent No. 2 sold his right to take delivery of the said goods to opponent No. 1 at Rs. 2‑8‑0 per maund. Opponent No. I deposited a sum of Rs. 1,000 with opponent No. 2 and on 18th June 1950, paid the balance of the price of the goods Rs. 4,159‑12‑9 by a cheque on the Central Bank of India Ltd., Karachi. Thereafter opponent No. 2 gave a delivery note dated 1st May 1950, to opponent No. 1 for taking delivery of the goods from opponent No.

3. Opponent No. 3 accepted this delivery note and supplied 1500 maunds to Asio‑African Co. of Karachi as instructed by opponent No. 1 but failed to deliver the balance of 500 maunds of Sarsoon Oil Cakes to opponent No. 1 in spite of repeated demand and notice. Notices were exchanged between the parties. Exh. 20 is a telegram, dated 6th April 1951, Exh. 21 is a registered notice sent to M/s. Peer Muhammad Haji Dawood, dated 14th April 1951, Exh. 22 and Exh. 23 are acknowledgement receipts of the notices sent to M/s. Chand Oil Mills and Peer Muhammad Haji Dawood. Opponent No. 3 however did not comply with these notices and therefore opponent No. 1 filed Suit No. 1466 of 1951' for the recovery of a sum of Rs. 1,757‑14‑9 as damages and for the return of the price paid by him towards the purchase of the said goods. Originally only opponents Nos. 2 and 3 were impleaded as defendants in the suit but on 9th September 1953, the learned Chief Judge, Small Causes Court permitted to implead the applicant namely Chand Oil Mills as party to the suit. The suit was contested both by Haji Mehar Din opponent No. 3 and the applicant but it was decreed on 2nd December, 1953. Revision Application No. 17 of 1954 is filed by M/s. Chand Oil Mills and Revision Application No. 52 of 1954 is filed by Haji Mehar Din. Both the applicants contest the finding of the learned Chief Judge, Small Causes Court on the ground that they are not liable to pay any claim of opponent No.

1. So far as the Revision Application of M/s. Chand Oil Mills is concerned the only point urged on their behalf is that they were joined as defendant No. 3 in the suit on 9th September 1953. The contract in dispute is alleged to have been entered into between opponent No. 1 and opponent No. 2 on 26th May, 1950 and therefore it is urged that the claim against them is time‑barred. There is much force in this contention. The learned Chief Judge, Small Causes Court has not applied his mind to the question of limitation raised on behalf of the applicant. This legal objection was specifically taken by the applicant in his written statement but there is no finding of the learned Chief Judge on this point. It is admitted by the learned counsel for the parties that the claim against the applicant in the circumstances and facts of this case had become time‑barred on 9th September 1953 and therefore if a suit would have been filed against them on that date, it was likely to succeed. The opponents' counsel, however, urged that the applicant was already on the record through their partner opponent No. 3 and they were formally brought on the record as party to the suit. This contention has not at all impressed me. If this was the position, there was no need to implead the applicant as a party to the suit. Opponent No. 3 was described as a person carrying on business in the name of Messrs. Chand Oil Mills and this clearly shows that he was impleaded as party to the suit in his individual capacity. The suit against him was not filed in a representative capacity and by no stretch of imagination it car, be said that the applicant was already represented on the record) through him. Under these circumstances the question for deter initiation is whether the applicant could be joined as party after the claim against them has become time‑barred. It will be observed that before impleading the applicant as party to the suit, no notice was sent to him. He was therefore not in a position to raise any objection. This objection could be raised only in the written statement. The learned Judge ought to have considered this objection raised in the written statement. In my opinion the suit against a party joined at a later stage can be deemed to have been filed on the date when he was soil made as a party to the suit. This is actually what is provided by section 22 of the Limitation Act. There is no doubt that on the addition of the applicant as party to the suit, the suit was barred against him and .the learned Chief Judge, Small Causes Court, was not justified in decreeing the suit against him. I will there fore set aside the decree passed against him. So far as Revision Application No. 52 of 1954 is concerned, the learned counsel for the applicant has contended that the contract for the supply .of the goods in dispute was with M/s. Chand Oil Mills and not with Haji Mehar Din and therefore the learned Chief Judge, Small Causes Court was not justified in decreeing, the claim against him. There is no force in this contention. It is admitted that Haji Mehar Din at the time when the contract was entered into with opponent No. 2 for the supply of the goods, was partner of Messrs. Chand Oil Mills. It was the duty of the applicant to produce the original contract on the record to prove that the transaction in dispute was not entered through him. On the contrary, there is ample evidence on the record to establish that it was he who accepted the delivery note and delivered the goods at the instance of opponent No. 1 to Asio African Co. Moreover, it is immaterial that the contract for the supply of the goods in dispute was between M/s. Chand Oil Mills and opponent No. %2 because the applicant being a partner of M/s. Chand Oil Mills is as much responsible for the liabilities of the firm as the firm itself or the other partners of the firm. What has happened in this case is that the opponent No. 1 instead of impleading M/s. Chand Oil Mills, impleaded their partner Haji Mehar Din as the person solely responsible for their claim. The learned counsel for the applicant has not been able to satisfy me that under the law there is any bar to file a suit against the partner of a firm. On the contrary under section 43 of the Contract Act in a suit upon a contract made by a partner on behalf of a partnership, the promisee can compel all or any of the partners to perform the whole of the promise. My attention was drawn to the provision of Order XXX, Rule 1, C. P. C. to show that the mode to file a suit against the firm is to sue it in the name of the firm. But this is only procedural law and does not in any way affect the substantive law laid down in the Contract. Act. This view is supported by the decision reported in Chaudhri Atma Ram and others v. Mian Omar Ali (A I R 1940 Lah. 256) and Mst. Jagpati Kuer v. Shakhdeo Prasand and another (A I R 1942 Pat. 204). The learned Judges in these cases held that the provisions of Order XXX, C. P. C. merely provides a new procedure and does not affect the plaintiff's right of bringing a suit against the members individually even without naming the firm as one of the defendants. There is yet another aspect of the case. The old partnership of Messrs Chand Oil Mills is dissolved and in the new partnership the applicant is not a partner and this fact might have defeated opponent No. 1's suit against the firm. In such circumstances the suit could have been decreed only against the individual parties. I am satisfied that the applicant was a partner of Messrs Chand Oil Mills, he was dealing on behalf of the firm and under the circumstances the decree passed by the learned Chief Judge, Small Causes Court against the applicant is perfectly correct and cannot be set aside. No other point has been urged by the learned counsel for the applicant on the merits of the case. For the reasons given above, I will allow Revision Application No. 17 of 1954 with costs and dismiss Revision Application No. 52 of 1954 with costs. A. H. Order accordingly.