P L D 2006 Karachi 258 (PLP)

FAISAL ARAB, J.

The sole proprietor of the Defendant, Tariq Pervaiz expired during pendency of his suit on 10-7-2001. On 9-2-2004 his counsel moved an application C.M.A. No.685 of 2004 under Order XXII, Rule 4 seeking the heirs of the decreased to be A impleaded as party. Another application C.M.A. No.3873 of 2004 under section 5 of the Limitation Act was also moved seeking condonation of delay in moving C.M.A. No.685 of 2004. In paragraph 4 of the supporting affidavit the reason for seeking condonation was shown to be the unawareness of pendency of this suit. Mr. Mamoon Hassan, learned Counsel for the Plaintiff opposed the grant of the application for impleading the legal heirs of the deceased on the ground that it is patently barred by time. He further contended that the deceased along with his written statement did not file list of his presumptive legal heirs which was a requirement under Order VIII, Rule 13, C.P.C. and hence failure to bring legal heirs on record within the time limited by law, debars them from participating in the proceedings. The Defendant's counsel at the very outset candidly conceded that no list of legal heirs was filed at the time of filing of the written statement. However, he submitted that delay may be condoned as the legal heirs were themselves not aware of the pendency of this suit and therefore, application could not be moved within prescribed time. Initially I was of the opinion that the present suit itself is not maintainable as the plaintiff has sued the defendant which is business name of a sole proprietorship concern and a sole proprietorship concern not being legally recognized entity, the Proprietor of a sole proprietorship concern is to be sued in his personal name. However, the learned counsel for the plaintiff contended that law do not permit a suit to be filed in the business name of a proprietorship concern but it certainly allows a plaintiff to sue a proprietorship concern in its business name. In support of his argument he referred to Order XXX, Rule 10, C.P.C. and relied upon Bhagvan Managi Marwadi and others v. Hiraji Permaji Marwadi AIR 1932 Bombay 516, Ismail Haji Sulaiman v. Messrs Hansa Line and another PLD 1961 Dacca

693. The Collector of Customs (Appraisement), Collectorate of Customs, Government of Pakistan Customs House v. Messrs Imran Eenterprises through proprietor and others (2001 CLC 419) and Messrs M.A. Majeed Khan v. Karachi Water and Sewerage Board and others (PLD 2002 Karachi 315). In all the four cited cases it has been held that the proprietorship concern can be sued in its business name and the only bar is that it cannot sue in such name. Therefore, the learned counsel for the Plaintiff is absolutely right when he maintains that the defendant has been rightly sued and the suit is maintainable. Adverting to the controversy that the application for impleading the legal heirs of the deceased has become barred by time, the learned counsel for the plaintiff relied upon the case of Bibi Khudeja v. Pir Sarwarduddin Shah reported in 1992 MLD

490. In the said judgment at page 494 it is held as follows: "It would thus be seen that according to Rule 4, as it originally stood, the burden was on the Plaintiff to implead the legal representatives of the deceased Defendant as parties to the suit failing which, the proceedings in the suit were to abate. However, after the said amendment by the Law Reforms Ordinance, the position has materially altered because although the Plaintiff can proceed with the suit without joining the legal representatives of the deceased defendant, an option has been left with the legal representatives to join the suit proceedings and to make any defence appropriate to their character as legal representatives of the deceased defendant. The afore-stated position has been made clear by sub-rules (2) and (3), the latter being substituted for the original sub-rule '(3). Sub-rule (4) was also added through the said amendment though we are not concerned at present with the same. Thus under the newly-added sub-rule (3), if no application has been made for impleading the legal representative the Court may proceed with the suit and notwithstanding the death of the Defendant it may pronounce any order or judgement and the same shall have the same force and effect as if it had been pronounced before the death of the Defendant took place. Now, under Article 177 of the Limitation Act the period prescribed for making such application, which may be made either by the plaintiff or by the legal representatives of the deceased Defendant, is 90 days, which period is to be computed from the date of the death of the deceased Defendant. Consequently, if no application is made either by the Plaintiff or by the legal representatives of the deceased Defendant within the time prescribed by the law, the Court would be obliged to continue the proceedings notwithstanding the death of the Defendant and any judgment or order pronounced thereby would have the same force and effect as provided in sub-rule (3), as pointed out earlier." Then at page 495 of the above-cited judgment it was held as follows:

"It is pertinent to note that, as has been pointed out earlier, failure of the Plaintiff to apply for joining the legal representatives will not result into abatement of the suit, whereas, in case of failure of the legal representatives of the deceased Defendant to apply within the time prescribed by the law, they would be debarred from taking part in the proceedings and the suit, in that case, would continue in the name of the dead Defendant. It would therefore, be erroneous to assume that the effect of the said amendment on the Plaintiff or the legal representatives of the deceased Defendant is the same." In the above-cited judgment which is binding on this Court, reliance was also placed on the case of Mst. Sardar Begum v. Mst. Chiragg Bibi (1989 CLC 825). It has been clearly held in that case that Order XXII, rule 4, C.P.C. permits the Court to proceed with the suit notwithstanding the death of the Defendant, in the same manner, as if he was alive. This power is, however circumscribed by the condition that in case application for bringing legal heirs on record is not moved within the time prescribed by law under Article 177 of the Limitation Act, the Court can proceed with the matter notwithstanding the death of the Defendant. This provision is in nature of an exception to the general law under which no proceedings can be held against a dead person and is therefore is to be strictly construed. Thus the effect of failure to implead the legal representative of defendant within prescribed time debars them from taking part in the proceedings. As to the reasons contained in the application for condonation of delay, learned counsel for the Plaintiff Mr. Mamoon Hassan Advocate has stated that no reasonable ground has been shown. He relied upon Messrs Ahan Saz Contractors v. Pak Chromical Limited (1999 MLD 1781). In the said case it was held that party seeking condonation of delay in filing suit or application was required to explain satisfactorily the delay of each and every day. In the present case the application was moved on 9-2-2004 whereas death took place on 10-7-2001 i.e after an inordinate delay of about 29 months whereas Article 177 of the Limitation Act provides a period of only 90 days for moving such C application. The only reason disclosed for seeking condonation of delay is unawareness of the pendency of this suit, which is not a plausible reason. Ignorance of the pendency of suit cannot be made ground for condonation of delay. It may be so that the legal heirs were not aware of the pendency of the suit but the law has made it mandatory for a party to a suit to file a list of his or her presumptive legal heirs so that in the event of death of a party, the Court can on its own motion send notice to the legal heirs at the address mentioned in the list. This would have taken care of the situation where the legal heirs were not aware of the proceedings. Having not complied with the requirements of law, the legal heirs have to suffer the consequences provided under the law for the omission committed by their predecessor. Had there been a list of legal heirs filed with the written statement,. I would have still condoned the delay in moving the application, as the names of the legal heirs in any case were already on the case file. In such a situation it would have been just a mere formality to make them a party. This being not the case in the present case, the facts of the case reported in 1992 MLD 490 by learned counsel for the plaintiff are fully attracted to the present case and there is no other alternative left with this Court but to dismiss the listed-applications. In view of the above legal position, legal heirs of the deceased are debarred from participating in the proceeding. Suit is to proceed against the dead Defendant and any judgment that may be pronounced in the present case shall have the same force and effect as if it has been pronounced during lifetime of the deceased. As there is no other defendant to this suit, office is directed to fix the case for final disposal. The plaintiff is directed to file affidavit in ex parte proof before the next date of hearing. Both the listed-applications are dismissed. However there shall be no order as to costs. H.B.T./T-8/K?????????????????????????????????????????????????????????????????????????? Applications dismissed.