1. MUSHIR ALAM, J.-- Listed Applications CMA No. 6523 of 2003 under Order 1, Rule 10, CPC and C.M.A.
2. No. 2540 of 2003 under Order 7 Rule 11, CPC have come up for hearing. Both the applications are being heard and are being disposed of by this common order.
3. Through CMA No. 6523 of 2003 under Order 1 Rule 10, CPC, plaintiff seeks joinder of Mrs. Nazely Sultan A.I and Salman Sultan A.I, as co-plaintiffs. Jonder is sought on the ground, inter alia; that Partnership Firm filed the suit and the other partners were not named in the title of the plaint due to inadvertence by one of the partners, Mir Sultan A.I, who signed the plaint on behalf of the firm.
4. Second Application i.e. CMA No. 2540/2003 under Order VII Rule 11 read with Section 151, CPC has been filed by the defendant seeking dismissal of the suit. Defendant extract support under Order 30 Rules 1 and 10, CPC. In addition, it is contended that, for want of registration in terms of Section 69 of the Partnership Act, the suit cannot be instituted either in the name of partners or in the name of unregistered firm.
5. Mr. Shaukat. Hayat, learned counsel appearing for the plaintiff contends that other partners of the firm could not be joined due to oversight. He states that after institution of suit firm was got registered.
6. PLD 1988 S.C. 39). He also contends that the firm is name of collective partners; therefore, there is no impediment to bring the suit.
7. 1 the case-law reported as The Province of Sindh v. Royal Contracts (1996 CLC 1205).
8. Having heard the arguments, perused the record. And examined the case-laws cited at bar.
9. I have examined listed application, nowhere it was stated that after institution of the suit Partnership Firm was got registered. Admittedly, no documents have been placed on record to show the composition` of the partnership concern.
10. To carry on partnership business or to form a Partnership Firm, it is not obligatory on parties to have the Partnership Firm registered. In terms of Section 4 of the Partnership Act, to constitute a Partnership Firm, (i) there must be a business. (ii) There must be an agreement between two or more persons to share the profit of the business. (iii) All or any of them acting for all must carry on business.
11. Objection as to maintainability of suit was raised on the strength of Section 69 of the Partnership Act, which runs as follows:-- Effect of non-registration. -- (1) No suit to enforce a right arising from a contract br conferred by this Act, shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Registrar of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the person suing or have been shown in the Register of Firms as partners in the firm.
12. From the leading of above provision, it becomes clear that where two or more persons are carrying on Partnership, there is no bar under the Partnership Act to carry on the business or enter into contract.
13. Sub-section (1) deals with rights and interest of partners inter se and sub-section (2) deals with the dispute that may arise between the Partnership Firm and .a third party.
14. Though in the Partnership Act, as observed above, there are no provisions that make it compulsory to get a partnership firm registered. But in view of Section 69 of the Act a persuasive pressure comes on a firm to seek its registration if it seeks to enforce any rights through Courts of law. Such bar however does not come in the way of a third party who may file .a suit against unregistered firm; non-registration will have no bearing on the claim of such third party.
15. 1952 Lah. 314).. It was held that sub-section (2) of Section 69 of the Partnership Act is mandatory and makes a suit instituted by an unregistered firm entirely invalid, such view is consistently being followed by the Courts in Pakistan for reference see PLD 1982 Kar. 378, 1989 CLC 2229, 1985 CLC 2514.
16. The case reported as Province of Sindh v. Royal Contracts (1996 CLC 1205) also, reaffirms the principal laid in Australasia Bank Ltd. (supra). In case reported in 1996 CLC 1205, the plaintiff firm tried to overcome the objection of non-registration by seeking registration subsequent to the filing of the suit and by placing registration certificate on record. The Court did not approve such attempt. It was held that the subsequent registration of the firm does not entitle the Court to proceed with the suit. Since very competence to institute the suit was lacking therefore, without deciding other factual fact as to the merits of the case the suit was dismissed by the Appellate Court.
17. Case of Combined Enterprises (PLD 1988 SC 39) relied upon by Mr. Shaukat, learned counsel for the plaintiff, turns on entirely different proposition. In said case the issue was whether a partner in a firm could invoke arbitration clause and sue in the name of the Firm, without obtaining any written authority of other partners. The apex Court in its well considered judgment, dilated upon the implication of Order 30, CPC, at page 46 it was observed "This Order provides a mode or form of the procedure for suits by or against the firms". At the same page it was further observed "Order 30, CPC is an enabling provision and it was introduced in the Code of Civil Procedure, 1908, Rule 1 of this Order permits partners constituting a firm to sue Or be sued in the name of the firm. Clause (2) of the Rule 1 provides that it will be sufficient if the pleadings or other documents is signed or verified or certified by anyone of the partners. Rule 2 of the said Order further provides that where a suit is instituted in the name of the firm an obligation is cast on the plaintiffs or their Advocates that on demand in writing by or on behalf of any defendant forth with declare in writing the same and place of residence of the persons constituting the firm or on whose behalf suit is instituted ...... . . This provision is against the ordinary rule that when several persons wish to obtain a decree against a person all such persons mus be made a party to the suit. Apex. Court after examining the provisions of Order 30, CPC and provisions of the Partnership Act, held at page 46" . This is no requirement laid down for a partner to have an authority from the other partners before initiating a action by way of suit. This is not without a purpose as on account of relationship of each partner being principal and an agent for each other they, are, under the law, regarded as representing the other and for that matter as an agent of the firm. In said case registration or otherwise, of the firm was not in issue. In the Nagpur case (supra) also, implication of procedural provisions of Order 30, CPC were deliberated.
18. 1 and on behalf of Partnership Firm. Provided the firm is registered and secondly name of such partner is mentioned in the certificate of Registration. For the purpose of maintaining a suit by a firm, what is material is that the firm is registered. It is not material whether all the partners are joined and shown as party to the suit or that their name is disclosed at the behest of other party to the suit. Whatever the case may be, in terms of the proviso to Rule 2 to Order 30, CPC all the proceedings by the registered firm shall nevertheless be continued in the name of the firm.
19. Therefore, joining other partners on the application of one of the partners of the unregistered firm would, make no difference nor would remedy the patent defect.
20. It may however be observed that dismissal of the suit on such technicality will not bar subsequent suit on the same cause, after seeking registration of the firm, provided the claim is within time and otherwise maintainable. .