' MAMOON RASHID SHEIKH, J.---This single judgment shall decide Review Application No,02-C/2014 and C.R. No,84/2013 as common questions of law and facts are involved therein.
2. Both petitions have been brought by Messrs Global CNG, Chakwal (the petitioner) against Sui Northern Gas Pipelines Limited and another (the respondents) and arise out of a suit for declaration etc. Filed by the petitioner against the respondents in respect of the allegations of meter tampering/theft of gas and issuance of a detection bill.
3. The legal character/status however of the petitioner has not been explained in either of the petitions or indeed the plaint of the petitioner filed before the learned trial Court. The learned counsel for the petitioner was, therefore, at the outset required to explain the legal character/status of the petitioner in view of the fact that admittedly the petitioner is not a natural person. If it is a sole proprietorship then has the sole proprietor sued the respondents under his trade name? In case the petitioner is a partnership then is it registered with the Registrar of Firms under the Partnership Act, 1932? If the petitioner is a company limited by shares then is it registered with the Securities and Exchange Commission of Pakistan (the SECP) under the provisions of the Companies Ordinance, 1984?
4. As mentioned above the petitions as well as the plaint are silent as to the legal character/status of the petitioner. The learned counsel for the petitioner was, therefore, required to establish the maintainability of the petitions in view of the following legal position:--
(a) In case the petitioner is the trade name of a natural person i,e, a sole proprietorship then how are the petitions competent as a proprietary concern can be sued in its name but it cannot sue in its own name in view of the provisions of Order XXX, Rule 10 of the C.P.C.
(b) In case the petitioner is a partnership then as the petitions are based on contractual obligations, therefore, unless the petitioner is registered as a partnership firm under the Partnership Act, 1932, the petitions appear to be barred under Section 69 of the said Act; and
(c) In case the petitioner is a company limited by shares then unless the institution and filing of the suit as well as the petitions was by a person duly authorized in terms of the law as laid down inter alia by the judgments reported as "Muhammad Siddiq Muhammad Umar v. Austerlasia Bank" (PLD 1966 SC 684), "Abdul Rahim and 2 others v. Messrs United Bank Ltd of Pakistan" (PLD 1997 Karachi 62) the petitions are liable to be dismissed.
5. When confronted with the above the learned counsel for the petitioner has tried to maintain that the petitions are competent as the petitions have been filed in the name of Messrs Global CNG through its attorney Syed Hasnain Shah. Relies on "Messrs Combined Enterprises v. Water and Power Development Authority, Lahore" (PLD 1988 Supreme Court 39), "Messrs Sainjee Cargo Services v. Messrs Cargo Movers and others" (1989 CLC 2229) "Zubair Ahmad and another v. Shahid Mirza and 2 others" (2004 MLD 1010) to contend that the petitioner is a firm, therefore, under the provisions of Order XXX, Rules 1 and 2 of the C.P.C. It can bring the petition in its own name through its attorney Syed Hasnain Shah. Contends that the said attorney is duly authorized to bring the instant petitions.
6. The learned counsel has, however, been unable to explain or establish the character or status of the petitioner as, "a firm." Is it a partnership firm duly registered under the Partnership Act 1932 or for that matter a Company limited by shares registered under the Companies Ordinance, 1984. No document has been placed on the record to show that the petitioner is either registered with the Registrar of Firms or with the SECP.
7. However, a photocopy of the Special Power of Attorney (the POA) executed in favour of the said Syed Hasnain Shah the purported attorney of the petitioner is on the record. The photocopy of the POA reveals that the petitioner is ostensibly owned by one Syed Iftikhar Hussain Shah who, due to his frequent absence abroad, through the POA dated 6-4-2012 appointed the said Syed Hasnain Shah as his special attorney to, inter alia, pursue the suits/litigation against the respondents. It, therefore, follows that the petitioner is a proprietary concern or in other words the said Syed Iftikhar Hussain Shah carries on business of a CNG Pump in the name and style of the petitioner.
8. It is settled law that under the provisions of Order XXX, Rule 10 of the C.P.C. a person carrying on business in a name and style other than his own may be sued in such name or style as if it were a firm name, however, the person cannot sue in such name because a proprietary firm/concern does not have any legal status separate and distinct from its proprietor. For all intents and purposes it is the proprietor who is the legal person entitled to all the benefits and liable to answer for all the liabilities that accrue in respect of the proprietary concern. In other words the proprietor and the proprietary firm/concern are one and the same person. However, as said above, by virtue of the provisions of Order XXX, Rule 10 of the C.P.C. a proprietary concern may be sued in its name but the proprietary concern cannot bring a legal action as it does not have any legal character/status separate and distinct from its proprietor. Reliance in this regard is placed on the judgments reported as "Girdhari Lal v. Kangra Motor Agency and others" (AIR 1934 Lahore 147), "Ismail Haji Sulaiman v. Messrs Hansa Line and another" (PLD 1961 Dacca 693), "Habib Bank Ltd. v.
Iqbal I. Chundigar and another" (1983 CLC 1464), "Messrs Ahan Saz Contractors v. Pak Chromical Limited" (1999 MLD 1781), "The Collector of Customs (Appraisement) Collectorate of Customs, Government of Pakistan, Customs House, Karachi and others v. Messrs Imran Enterprises 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).
9. The learned counsel for the petitioner has tried to make out a case that the petitioner is a firm, therefore, the suit and the petitions have been brought under the provisions of Order XXX, Rules 1 and 2 of the C.P.C.. We are afraid in view of the above stated position of law the contention of the learned counsel is not tenable. Order XXX, Rule 1 of the C.P.C. Primarily deals with suits to be brought by a partnership firm and as said above no material has been forthcoming to establish that the petitioner is a partnership firm. Indeed, the copy of the POA executed by Syed Iftikhar Hussain Shah in favour of Syed Hasnain Shah shows otherwise.
10. We may, however, point out that there is always the exception that in case a person mistakenly sues in his trade name the necessary corrections/amendments are normally allowed subject of course to the, law of limitation, however, in the instant case neither the requisite corrections/amendments have been made nor any request in this respect has been forthcoming at the trial or the present stage.
11. Under the circumstances these petitions fail and are dismissed accordingly with no order as to costs.