AMIR HANI MUSLIM, J.--- This application has been made by learned counsel for the defendants seeking deletion A of the names of defendants Nos,.3 and 4 from the array of the defendants, inter alia, on the ground that Messrs Look Body Maker is the sole proprietorship of defendant No,1, who is father of defendants Nos.2 to 4 and is owned by defendants Nos.1 and 2. This statement of facts has been made in paragraph 1 of the counter affidavit, sworn by defendant No, 2, which, the learned counsel for the defendants, has filed to the application under Order XXXIX, rules 1 and 2, C.P.C. (C.M.A. 5735 of 2007). The learned counsel for the defendants, who represents all the defendants, has contended that defendants Nos.3 and 4 have no concern in A the business, which is being run in the name and style Messrs Look Body Maker and, therefore, they are neither necessary nor proper parties to these proceedings and their names be struck of from the array of the defendants. In support of her contentions, she has relied upon the cases of Uzin Export Import Enterprises v. Union Bank of Middle East Ltd., PLD 1994 SC 95 at page 96 and Port Services (Pvt.) Ltd. v. Trustees of the Port of Karachi, 2003 CLC 930 at page 931.
2. As against the contentions of defendants' counsel, the learned counsel for the plaintiff has argued that the defendants Nos.3 and 4 are necessary and proper parties to these proceedings and she has drawn my attention to the cash memo, which is at page 45 of the file, in which the names of Islam and Sarfraz appear. Copy of the cash memo, placed by learned counsel for the plaintiff, does show the name of Aijaz as well, however, the mobile number below the name of Islam has been scored off but a tick mark appears against the name of Aijaz. The learned counsel for the defendants submits that this by itself is sufficient to reflect that Islam is not running the business and his mobile number appearing under his name has been scored off. However, she has failed to offer any plausible explanation as to why the name of Sarfraz is appearing and neither his name nor his mobile phone number has been scored off. Even otherwise the defendant No,1 is father whereas the defendants Nos.2 to 4 are the sons and the same counsel is representing all of them.
The question as to whether the defendants Nos.3 and 4 have no interest in the business run in the name of Messrs Look Body Maker no affidavit has been sworn either by the defendants Nos.3 or 4 denying their interest in the business. In fact it is the defendant Nos.2, who has sworn the affidavit claiming that he and his father defendant No,1 have the interest in the business but defendants Nos.3 and 4 have not sworn any affidavit to the effect.
' Under the above circumstances, the judgments relied upon by the defendants' counsel are distinguishable on facts and the defendants Nos.3 and 4, if not necessary or least proper parties and their names at this point of time cannot be struck of from the array of the defendants as has been prayed by the learned counsel for the defendants.
' For the aforesaid reasons, this application is dismissed, however, the defendants' counsel would be at liberty to make such application after the evidence of the parties is recorded.
2. Deferred. Ad interim order passed earlier to continue till the next date.
3. Deferred.
' By consent of both the learned counsel for the respective parties, office is directed to fix this matter on a day other than Monday.