1. ' SYED SAEED-UD-DIN NASIR, J.---This order will dispose of C.M.A. No.914 of 2010, which is an application under Order VII, Rule 11 read with section 151, C.P.C. Filed by defendant No. 1.
2. ' The learned counsel for defendant No.1 while arguing the instant application has inter alia contended that the plaint is bad for want of privity of contract between the plaintiff and the defendant No.
1. The defendant No.1 has never entered into any agreement or memorandum of understanding with the plaintiff, which is a registered partnership firm formed by (1) Mrs. Yasmeen Gul Khanani, (2)
3. Messrs Capital Globe Pakistan (Pvt.) Ltd. And (3) Mr. Shaquil Haque as reflected from the certificate of Registration of such firm issued by the Registrar of Firms, which is annexed to the plaint as annexure-A. The plaintiff is not a party to the tripartite agreement dated 28-7-2007 appearing at page-99 of the file annexure B/1 to the plaint. The plaintiff has not approached this Court with clean hands, the attorney of the plaintiff is one of the partners who has signed the Sale Agreement and Memorandum of Understanding with the defendants styling himself as Managing Partner of the plaintiff. The learned counsel next contended that the said attorney is not even a partner of the plaintiff firm as per the aforesaid Certificate of Registration issued by the Registrar of Firms. The learned counsel for the defendant No.1 argued that the power of attorney dated 24th June, 2008 executed by Mrs. Yasmin Gul Khanani in favour of Gul Muhammad Khanani does not authorize the said Gul Muhammad Khanani to file instant suit on behalf of Registered Firm inasmuch as section 69(2) of the Partnership Act specifically contemplates that the suit in respect of a contract entered into between the partnership firm and third party can only be maintained by the partner of such firm whose name appears on the Register of Firm and not by an authorized person on behalf of such partner. The learned counsel for the defendant No.1 placed reliance on;
(1) PLD 1966 SC 684---Messrs Muhammad Siddiq Muhammad Umar v. The Australasia Bank Ltd.
4. ' Wherein it is held that in order to authorize an Attorney for instituting suit on behalf of public limited company, Reference to Articles of Association is necessary to see whether Directors were competent to delegate such power. In order to see that duly constituted Attorney of a public limited company is legally authorized or not. All persons who are dealing with the company are bound to see whether or not the power of attorney is in accordance with Articles of Association - Power bearing common seal of the company is not by itself enough.
5. ' This case-law relied upon by the learned counsel for the defendant No.1 relates to delegation of power by the Directors of a Public Limited Company for institution of a suit on behalf of such Company, however, in the present case the facts and circumstances are totally different from the aforesaid case-law relied upon inasmuch as the question before the Court in the instant application is delegation of power for the institution of a suit on behalf of a Registered Partnership Firm and not by a Public Limited Company. In the instant case the Managing Partner Messrs Yasmin Gul Khanani of Messrs Y.G. Investment and Developers has delegated the authority to Mr. Gul Muhammad Khanani to institute the present suit on behalf of the Partnership Firm the main source of capital of which are the personal funds of Mr. Gul Muhammad Khanani. Therefore, I see no relevance between the aforesaid case-law and the present case which are quite distinguishable from each other.
(2) PLD 1971 SC 550---Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd.
6. ' In this case it is held that the suit on behalf of Company by a person is not competent unless he is so authorized by a resolution passed by Company's Board of Directors passed by a Meeting of the Directors not duly convened.
7. ' Since this matter also relates to a Public Limited Company, hence it has no relevance with the facts of the case in hand.
(3) NLR 1983 UC 184---Dumez B]orie v. International Forwarders Ltd.
8. ' In this case it is held that suit by partnership on the basis of plaint signed and verified by constituted attorney on behalf of partnership instead of being signed and verified by one of partner is incompetent. Rule 1, Order XXIX merely authorizes signing and verification of pleadings on behalf of partnership firm, but it does not authorize an attorney to institute the suit on behalf of partnership/corporation. In order to make suit competent on the basis of plaint signed and verified by attorney, partnership must confer express authority upon attorney to empower him to institute suit on behalf of partnership/ corporation.
9. ' The present suit in fact has been filed by one of the partners of Messrs Y.G. Investment and Developers, however, the partner who has instituted the suit has delegated the authority to institute the same to his duly authorized attorney. The aforesaid case-law cited by learned counsel for defendant No.1 has no relevance whatsoever to the facts of the case in hand inasmuch as in that case the suit was filed by the Project Manager and the Principal Officer of the Partnership Firm without having been authorized to file the same either by any Power of Attorney or any of authority letter/resolution of the partnership firm.
(4) 1987 CLC 367 [Karachi]---Abubakar Saley Mayet v. Abbot Laboratories and others.
10. ' In this judgment of this Court it is held that suit filed by officer of a Company who had no authority to do so was nullity in the eye of law and plaint was non-existence for all intents or purposes.
11. ' In my view this case-law has no relevance with the facts of the present case, inasmuch as the Attorney is duly authorized by the partner of the firm to institute the present suit. Moreover, the aforesaid case-law cited by the learned counsel for the defendant No.1 relates to a Limited Company and not to a partnership firm, therefore, the same is not relevant.
(5) 1994 CLC 2413 [Karachi]---Messrs Standard Hotels (Private) Ltd. v. Messrs Rio Centre and others.
12. ' In this case the Court has held that suit, filed on behalf of Corporation by a Director, who is not authorized by the Articles of Association of said Corporation nor did the Corporation pass a Resolution of the Board of Directors authorizing such a Director to file a suit before the Court of law, was filed incompetently, and the plaint was rightly rejected in such a case.
13. ' The facts of this case are also distinguishable from the instant case inasmuch as firstly it relates to a Limited Company and secondly; the person who instituted the suit is without competent authorization, which was not conferred upon him for the institution of the suit. However, in the present case the plaintiff has been duly authorized by the said Mrs. Yasmin Gul Khanani vide Power of Attorney dated 24-6-2008. Therefore, the case-law cited above is not relevant to the facts of the present case.
(6) PLD 1997 Karachi, 62---Abdul Rahim and 2 others v. United Bank Ltd.
14. ' In this case it is held that suit filed by Banking Company it is the articles of the company which have to be seen to assess as to whether a person filing the suit was properly authorized, while the requirement to produce a resolution from the board of Directors could be dispensed with.
15. ' This case is again not at all relevant to the case in hand inasmuch as the same relates to a Banking Company which is a company with limited liability, and not a partnership firm.
(7) 2007 SCMR 741---Raja All Shah v. Messrs Essen Hotel Limited and others.
16. ' In this case it is held that in view of Order VII, rule 11, C.P.C., it is duty of the Court to reject the plaint, if on a perusal thereto; it appears that the suit is incompetent.
(8) PLD 1997 Karachi 276---Sirajuddin Paracha and 12 others v. Mehboob Elahi and 3 others.
17. ' In this case-law it is held that the suit which has been filed on behalf of the company without reference to any resolution authorizing any of the plaintiffs to file the suit is incompetent. Suit being incompetent, plaint was barred by provision of Order VII, Rule 11, C.P.C.---Plaint was rejected in circumstances.
18. ' This again is a case in which a limited corporation/company failed to pass any resolution authorizing any one of its Directors to institute the suit therefore, the suit was dismissed and the plaint was rejected for want of competent authorization. However, in the present case as discussed above, the plaintiff company's managing partner has duly authorized Mr. Gul Muhammad Khanani to institute the present suit, therefore, I see no relevance in this case-law to the facts and circumstances in the present case.
(9) 1997 CLC 795 [Karachi] -Board of Control for Cricket in Pakistan v. Karachi Development Authority.
19. ' In this case it was held that in the plaint filed on behalf of the Board it was nowhere mentioned as to what was status of the plaintiff nor the person who had verified and signed plaint had anywhere declared in plaint status of plaintiff or about his own authority to sign and verify the same. The plaintiff in its Counter Affidavit did not controvert allegations about competence of person filing and prosecuting suit. In such circumstances plaintiff's suit being incompetent was dismissed and the plaint was rejected.
20. ' This case is also not relevant to the circumstances of the case where the plaintiff's partner has specifically authorized the persons to sign and very the plaint by Power of Attorney dated 24-6- 2008.
(10) 2010 CLC 191 [Karachij---Bashir Dawood v. Haji Suleman Goawala and Sons ' In this case it is held that suit was filed by the plaintiff-company/ corporation through its Managing Director, who at the time of filing of the suit, did not possess authorization from the Board to act on his own and file suit on behalf of the plaintiff--- ' Before a suit could be termed as competently filed, it was necessary that authorization in that regard must come from plaintiff's/company's Board of Directors---Absence of authorization to file suit had become fatal to the maintainability of the suit---Suit filed without proper authorization was to be treated as not maintainable and liable to be dismissed on that score alone.
21. ' This case again is a case which is not relevant to the instant case for the reasons stated hereinabove.
(11) PLD 2005 Karachi 478---Dr. S.M. Rab v. National Refinery Ltd.
22. ' In this case it is held that non-conferring of proper authority on behalf of the Company through Board Resolution in favour of the Assistant Manager Legal who had instituted the suit on behalf of the Company, would result in incompetence of suit and thus same was not maintainable.
23. ' This case-law again has not relevance to the present case, inasmuch as the same relates to a Limited Company wherein the Articles of Association have empowered in order to see as to whether or not the suit instituted by the person on behalf of the Company was authorized under the Articles of Association of the Company and as to whether or not a Board Resolution authorizing the person for institution of suit passed by the Board of Directors of the Company, however, in the present case the Partnership Firm namely Y.G. Investment and Developers through its Managing Partner Yasmin Gul Khanani, who authorized Mr. Gul Muhammad Khanani vide General Power of Attorney dated 24-6-2008 has instituted the present suit and there is no cavil with the fact that the instant suit has been filed by a competent person who is duly authorized by one of the partners of the Partnership Firm.
24. ' Learned counsel for the defendant No.1 next contended that the suit is also barred by section 70 of the Co-operative Societies Act, 1925 inasmuch as the defendant No.1 is a Co-operative Society and no notice under sections 70 and 54 of the Co-operative Society Act, 1925 has been served upon the defendant No.1, therefore, the suit should be dismissed and the plaint -be rejected. On this ground the learned counsel for defendant No.1 placed reliance on PLD 1975 Karachi 428, 1997 CLC 187 and 2014 CLC 71.
25. ' Controverting the arguments of learned counsel for defendant No.
1. The learned counsel for the plaintiff has inter alia submitted that the defendant No.1 is admittedly a Society of which the defendants Nos.2 to 42 are members, besides perusal of the Memorandum of Understanding dated 10-6-2007, the Sale Agreement dated 28-7-2007, the extension of agreement dated 5-1-2008 and supplementary agreement of sale dated 28-3-2008 were duly signed by the defendants Nos.1 to 42 with the plaintiff, therefore, all these defendants not only have the privity of contract with the plaintiff but also they have to face the consequences of repeated breach of such contracts, therefore, causing huge losses to the plaintiff. The aforesaid MOU duly signed by the husband and duly constituted attorney of Yasmeen Gul, namely; Gul Muhammad Khanani when he was Managing Partner of the unregistered firm Messrs Y.G. Investment and Developers, and thereafter on her behalf and on behalf of her registered partnership firm namely; Y.G. Investment and Developers, therefore, the defendant No.1 or any one of the defendants cannot back out from such MOU and agreements, besides, Gul Muhammad Khanani also paid huge amounts from his personal account to the defendants for furtherance of the agreement, which is the subject matter of the case, which amounts were duly received and acknowledged by the defendants. He next contended that the earlier Partnership Deed, annexure-R to the plaintiff's Rejoinder, brought on record only in order to demonstrate that the said Gul Muhammad Khanani was the Managing Partner of the partnership firm at the relevant time, but later on two partners retired and Gul Muhammad Khanani transferred his entire share-holding in the said partnership firm in favour of his wife, and after induction of a new partner namely Capital Globe their names were entered into the partnership business. The learned counsel for the plaintiff next contended that the requirement of law is that at the time of filing of the suit for and on behalf of the registered partnership firm, the firm should be registered, however, even if an agreement was executed before the firm was registered, there is no bar on filing a suit for the enforcement of such agreement by the partnership firm which was subsequently registered. It is an admitted position that at the time of filing of the suit the plaintiff firm was registered and the suit has been filed by the duly constituted attorney of one of the partners of such a registered firm namely Mrs. Yasmin Gul Khanani, which fulfills the requirements of section 69(2) of the Partnership Act, 1932.
26. ' Learned counsel for the plaintiff further contended that section 69(2) of the Partnership Act, 1932 is not at all applicable as the plaintiff is a registered partnership firm as the name Y.G. Investment stands for Yasmeen Gul and Gul Muhammad Khanani is her husband and attorney. It is the same firm with whom the defendants Nos.1 to 42 entered into an agreement of sale and MOU. Merely retirement of Gul Muhammad Khanani from the said firm does not mean that the defendants have no privity of contract between themselves and the plaintiff. Learned counsel for the plaintiff further contended that the jurisdiction of the civil Court is ousted only in case where sot le statutory functionary has jurisdiction to entertain, adjudicate or determine any dispute under the Cooperative Societies Act, 1925 but in the present case, there is a dispute between the parties with regard to contractual obligations which cannot be decided under the Cooperative Societies Act.
27. The case of the plaintiff falls within the proviso to section 54 of the Cooperative Societies Act, 1925 which can be resolved by civil a suit. Besides, the plaintiff is not at all the member of the Society, hence, the provisions of sections 54, 70 and 70-A of the Cooperative Societies Act are not applicable in this case. The relief sought in this suit cannot be adjudicated or granted by the Registrar, Cooperative Societies or his nominee, not every dispute between persons mentioned in section 54 of the Cooperative Societies Act. 1925 could qualify to be a dispute touching the business of the Society, merely because the subject property of the suit was managed and controlled by a society.
28. "The learned counsel for the plaintiff has relied upon an unreported order dated 4-12-2012 passed by a Division Bench of this Court in C.P. No.3635 of 2010 wherein it is held that even otherwise, when there, is a dispute over title to the property, the Registrar's Nominee ought to have impleaded the petitioner as a party, invoked proviso to section 54 of the Cooperative Societies Act, 1925 and should have given option to the parties to get the controversy resolved through a civil suit.
29. Nevertheless civil suit has been filed. An opportunity should be given to the petitioner to establish his claim in the pending suit and the plaint ought to have been rejected summarily under Order VII, Rule 11, C.P.C. We, therefore, allow this petition, set aside the impugned order and direct the civil Court to record evidence of the parties within three months and thereafter decide the matter expeditiously preferably within 60 days of recording of evidence."
30. ' He further placed reliance on an order in Suit No.549 of 2008 dated 14-11-2014 passed by me wherein, while placing reliance on PLD 1997 SC 3, I have held that when the Authority or the Tribunal has acted in violation of the statute and in contravention of the principles of natural justice, such order can be challenged before the Civil Court."
31. ' Learned counsel for the plaintiff has also drawn attention of the Court to the consent order dated 20-1-2010, which is reproduced as under:- "20-1-2010 ' Mr. Kh. Shamsul Islam, Advocate, ' Messrs Mushtaq A. Memon, Advocate and 1shtiaq Memon, Advocate.
32. ' Messrs Sajjad Ahmed Halali, Advocate and Ghulam Abbas Pishori, Adv.
33. ' Mr. Kazi Abdul Hameed, Advocate ' Counsel for both the parties have agreed as follows:- "it is jointly stated by the abovenamed parties that the application for interim injunction (C.M.A.
34. No.10282 of 2003) may be disposed of in the following terms: A. The plaintiff does not press the relief of specific performance and/or any right in respect of the subject property being Plot Nos.G-7 and 8, measuring 7520 Sq. Yds., situated in Block-8, KDA Scheme No.5, Clifton, Karachi, in the suit which may proceed for rest of the prayers. B. The plaintiff's possession as tenant of Flat No.2 and occupant of Flats Nos.7 and 17 shall not be disturbed by the defendants Nos.1 to 42 or any of them except in due process of law. C. The defendants Nos.2 to 42 shall execute personal bond(s) to the satisfaction of Nazir of this Hon'ble Court binding themselves to meet and satisfy the money decree if any, as may ultimately be passed in the present proceedings and further undertaking to place to record of this Hon'ble Court their current/changed residential address until disposal of the suit. D. The plaintiff shall not interfere, in any manner, with the sale, transfer, lease, alienation, etc, of the apartments/flats by the defendants Nos.1 to 42 or their assignee(s) to anyone.
35. ' Mr. Kh. Shamsul I]slam states that even if the plaintiff fails to establish his case, maximum penalty, that can be imposed upon the plaintiff, would be forfeiture of 10% earnest money. However, in the present case, he states that in addition to 10% that was paid as earnest money, the plaintiff has incurred millions of rupees on commercialization of the property and said amount is liable to be returned to the plaintiff. Mr. Mushtaq A. Memon states that no such claim has been made in the suit. In the circumstances, the plaintiff shall be at liberty to file an application seeking amendments of the plaint to incorporate such claim and thereafter appropriate order shall be passed.
36. ' C.M.As. 988 of 2009, 1028 of 2008 and 109 of 2009 stand disposed of."
37. ' The learned counsel for the plaintiff extending his arguments further submitted that the plaintiff has a legal character to file the instant suit with whom the defendants entered into the agreement at the time of receiving the hefty amount, besides, the defendants at the time of signing of the agreement as well as receiving of the payment from Gul Muhammad Khanani never objected and never questioned his identity. He next contended that annexure-A at page 39 of the suit file, which is the certificate issued by the Registrar of Firms clearly mentioned therein the names of the partners of the plaintiff, the plaintiff firm is entirely controlled by Mr. Gul Muhammad Khanani, who in terms of the Partnership Deed dated 2-4-2007 was also one of the partners of the plaintiff firm including his wife and three other partners, as mentioned in the Registrar of the Firms Certificate.
38. He further submitted that all the Pay Orders received by the defendants and all the payments made to the defendants pursuant to the Sale Agreement dated 28-7-2007 were prepared from the account of Messrs Y.G. Investment as well as from the personal account of Gul Muhammad Khanani. Therefore, privity of contract has been established not only between the plaintiff and the defendants, but also the plaintiff's Managing Partner's husband Gul Muhammad Khanani. He further submitted that eight Pay Orders were prepared from the personal account of Mr. Gul Muhammad Khanani on account of Y.G. Investment and Developers for the benefit of defendant No.1's member towards the part payment of sale consideration in respect of the Agreement of Sale dated 28-7-2007. Such Pay Orders were duly encashed by the defendants. The learned counsel for the plaintiff has also drawn attention to paras 6, 13, 14, 18, 21, 24, 25, 28, 30 and 37 of the General Power of Attorney dated 24-6-2008, which are reproduced as under:- "(6) And to purchase and/or sell and/or concur in the sale, transfer and/or assignment of all such properties, moveable and/or immovable properties and business and, shares in firms and/or companies and Messrs Y.G. Investment and Developers or any of them or any part thereof upon such terms and conditions as my said Attorney may deem expedient and to execute or concur in executing all documents and instruments for the said purpose."
39. "(13) To appear and act for me and on my behalf in all courts, all departments, offices, including the offices of the CDGK, Karachi Building Control Authority, Karachi Cantonment Board and/or before any other authorities including the Collector, Deputy Collector, City Mukhtiarkar, Registrar of Assurance, Ministry of Works, Government of Pakistan, Registrar of Firms, Registrar of Joint Stock Companies and the Rent Controller and other authorities and/or departments etc. Etc."
40. "(14) To sign verify, plaints, written statements, petitions, applications, executions, revisions, appeals in all courts, upto honourable Supreme Court, claims, objections, receipts, discharges and all other kinds of applications and petitions and representations and to file and prosecute the same in such courts and offices and also to defend all such actions pertaining to my properties or share in the same or businesses."
41. "(18) To execute and sign any deed of partnership, deed of dissolution of partnership, application for registration of partnership under the Partnership Act, 1932, application for registration or renewal of registration of firm under section 26A of the Income Tax Act, Return of Income, lease deed, rent deed, agreement of sale, and any other agreements, deeds and documents as shall be required or may deemed proper for or in relation to all or any of the matters or purposes aforesaid."
42. "(21) Also to ask demand sue or recover and receive of and from all persons and bodies liable to pay transfer and deliver the same respectively all sums of moneys, stocks, shares, funds, interest, dividends, debts, dues, goods, effects and things now or at any time hereafter owing or payable or belonging to me either solely or jointly with any one or more persons by virtue of any share in any property or any security for money or upon any balance of accounts or under or at foot of any security or otherwise howsoever."
43. "(24) And for all or any of the purposes of these presents to appoint and engage any solicitors, pleaders or other legal practitioners and or appoint any other person or persons as his Attorneys or Sub-Attorneys or Sub-Agents, Advocates, Pleaders, Agents and to delegate all or any of the aforesaid powers generally or in relation to some particular act or acts, and to revoke such powers at any time as he may deem proper and expedient."
44. "(25) To take prosecute or defend all legal proceedings touching any of my matters in which I now or may hereafter be interested of concerned and also if thought fit, to compromise, refer to arbitration, withdraw or confess judgment in, any such proceeding as aforesaid."
45. "(28) And also to take all necessary proceedings either civil or criminal for the due management and protection of my properties and business in which I may presently be interested Or entitled either solely or jointly with any one or more persons or as trustee or otherwise and for ejecting the tenants or for bringing attachment before or after Judgment or issuing execution and for realizing by sale of any property that might be seized or attached by the process of any Court and to obtain payment of monies realized by means of such attachment or execution and thereupon to pass proper receipts and discharges for the same."
46. "(30) To accept service of any writ of summons or other legal process and to appear and present me in any suit proceedings or matter whether now pending or which may hereafter be commenced in any Court and before all Judicial or other Officers whatsoever as by the said Attorney shall be thought advisable and for me and in my name or otherwise to institute as also to defend and carry to appeal and final execution any notice or other proceedings in any Court whether for the recovery of any debt, sum of money or any right, title and interest in any property and the same action or proceedings to prosecute or discontinue or become non-suit therein if he shall see safe."
47. "(37) To enter into any partnership business for me and in my name and for that to sign Deed of Partnership, application for Registration of the partnership firm and to give notice for retirement and/or dissolve the partnership firm and sign Deed of Dissolution of the firm as settle as the accounts of the firm."
48. ' The learned counsel for the plaintiff contended that plaintiff has filed the instant suit through one of its partners namely; Yasmeen Gul Khanani, who authorized her husband Gul Muhammad Khanani, to institute the present suit, therefore, the requirements of section 69(2) of the Partnership Act, 1932 that the suit in respect of a contract entered into between the partnership firm and a third party can only be maintained by partner of such firm whose name appears in the Register of Firm or by authorized person on behalf of such partner, are fulfilled. And there is no cavil with regard to the fact that the suit is very much maintainable under section 69(2) of the Partnership Act, 1932.
49. ' I have heard the arguments of learned counsel for the parties. Perused the material available on the record of the case as well as the case law cited with the able assistance of the learned counsel for the parties and have come to the conclusion that the objection taken by the learned counsel for the defendant No.1 with regard to maintainability of the suit under section 69(2) of the Partnership Act, 1932, neither tenable nor sustainable in law it is an admitted position that Mrs. Yasmin Gul Khanani wife of Gulam Muhammad Khanani is one of the three partners of Messrs Y.G. Investment and Developers, which is a registered partnership firm vide; Registration of Partnership issued by the Registrar of Firm dated 19-6-2008, who authorized her husband Mr. Gul Muhammad Khanani to institute the present suit before this Court. Through General Power of Attorney dated 24-6-2008, wherein in paragraphs 6, 13, 14, 18, 21, 24, 25, 28, 30 and 37, the said Mrs. Yasmin Gul Khanani specifically conferred powers on her husband to institute suits and legal proceedings in respect of Messrs Y.G. Investment and Developers by mere perusal of the aforesaid paragraphs of the aforesaid General Power of Attorney it can easily be inferred that the instant suit has been filed by a lawfully authorized person for the sake of convenience section 69(1) and (2) of the Partnership Act, 1932 are reproduced herein-below:- "69. Effect of non-registration. (1) No suit to enforce a right arising from a contract or 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 name unless the firm is registered and the person suing is or has been shown in the Register 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 or by on behalf of a firm against any third party unless the firm is registered and the person suing are or have been shown in the Register of Firms as partners in the firm."
50. ' It will not be out of place to mention here that whenever there is a question of interpretation of institution of a suit by or on behalf of a partnership firm, section 69 subsection (2) of the Partnership Act, 1932 should not be read in isolation from Order VI Rule 14 of the Code of Civil Procedure, 1908 which deals with signing of the pleadings, which for the sake of convenience is reproduced as under:- ' ORDER VI, RULE 14, C.P.C.: "14. Pleading to be signed.---Every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf."
51. ' There is nothing contained in the aforesaid provision of procedural statute which precludes a situation where a partner of a firm could file a suit on behalf of the firm through an authorized Attorney, who is duly authorized by the partner to institute a suit on behalf of the firm through such partner. This means that neither section 69(2) of the Partnership Act, 1932 nor Order VI, Rule 14, C.P.C. Create any bar on institution of a suit by a partner on behalf of a partnership firm through a duly authorized Attorney.
52. ' It will also be equally advantageous to note here that the provisions contemplated by Order. XXX of the Code of Civil Procedure which deals with "Suits By or Against Firms and Persons carrying on business in names of other than their own" does not create a bar on the partner of a firm from authorizing an Attorney to institute/defend a suit on behalf of such partner in the name of the firm.
53. For the sake of convenience Order XXX, Rules 1 and 2, C.P.C. Are reproduced hereinbelow.
54. "SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN"
55. "(1) Suing of partners in the name of firm.---(1) Any two or more persons claiming of being liable as partners and carrying on business in [Pakistan] may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.
(2) Where persons sue or are sued as partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons."
56. ' In my view Order VI, Rule 14, C.P.C. And Order XXX, Rule 2, C.P.C. Cannot be read in isolation from each other, inasmuch as, both are provisions of the same statute and, therefore, should be read in conjunction with each other. If I agree with the argument of the learned counsel for the defendant No.1 that in case a suit by or on behalf of partnership firm, only the partner can sign the pleadings and institute the suit personally and not through a duly constituted Attorney, then the provisions of Order VI, Rule 14 of the Code of Civil Procedure, 1908 will become obsolete and redundant, which is not the intention of the legislature. The legislature intended to facilitate smooth procedural flow for a suit filed by or against the partnership firm through its partners suing or sued, the legislature never intended to create a bar on the partners of a partnership firm from having recourse to law and justice, specially to avail the concession of law contemplated by Order VI, Rule 14 of the C.P.C., merely on account of being a partner in the partnership firm, when such benefit is available to all individuals of the state under the same statute.
57. ' In the instant case Mrs. Yasmin Gul Khanani, who is undoubtedly one of the partners of Messrs Y.G.
58. Investment and Developers has conferred upon Mr. Gul Muhammad Khanani authority to sign the pleadings or to sue or defend on her behalf everything in respect of her share in the said firm, including but not limited to institution and defending suits in respect of the same.
59. ' Adverting now to the arguments of the learned counsel for the defendant No.1 that the suit is barred under sections 54, 70 and 7-A of the Co-operative Societies Act, 1925, it is important to examine the provisions contemplated by the said three sections, which are reproduced as below:- "54. Arbitration.---[If any dispute touching the business of a society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises:--
(a) Between members or past members of the society or persons claiming through a member or past member, or
(b) between members or past members or person so claiming and any past or present officer, agent or servant of the society, or
(c) between the society or its committee, and any past or present member of the society, or
(d) between the society or its committee, and any past or present officer, agent or servant of the society, or a surety of such officer, agent or servant, whether such surety is or is not a member of the society, [or]
(e) between a financing bank authorized under subsection.(1) of section 34 and a person who is not a member of a society.] ' It shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned.] ' A dispute shall include [the question whether a person is or was a member of a society and also] claims by a society for debts or demands due to it from [a member, past member or nonmember] or the heirs or assets of a past member [or non-member] whether such debts or demands be admitted or not; ' Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the Question has been tried by a regular suits instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar's order suspending proceedings the Registrar shall take action as laid down in paragraph 1 of this section".
60. "70. Notice necessary in suits.---No suit shall be instituted against a society or any of its officers in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left."
61. "[70-A. Bar of jurisdiction. (1) Notwithstanding anything provided in any other law for the time being in force, but save as expressly provided in this Act ---
(a) no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial-Government, the Registrar of his nominee, any arbitrator or liquidator, a society, a financing Bank, a Co-operative Bank or any other person as empowered by or under this Act, or the rules or bye-laws framed thereunder to dispose of or to determine.
62. (13). The validity of anything done or an order passed by the Provincial Government a society a Financing Bank, Co-operative Bank the Registrar or any other person referred to in clause (a) under this Act or the rules and bye-laws framed thereunder, shall not be called in question in any manner whether before or by any Court or other authority whatsoever, and
(c) no Court or other authority whatsoever shall be competent to grant any injunction or pass any other order in relation to any proceedings under this Act or any rules or bye-laws framed thereunder before the Provincial Government, a Society a Financing Bank, a Co-operative Bank, the Registrar or any other person referred to clause (a)
(2) The provisions of subsection (1) shall be applicable to proceedings, appeals and revisions pending adjudication or disposal before or in any court or other authority whatsoever on the date that the Cooperative Societies (Amendment) Ordinance, 1966, comes into force, and any order passed in such proceedings, whether before or after the coming into force of the said Ordinance, in regard to matters referred to in subsection (1), shall stand vacated and be without any force."
63. ' By mere perusal of the aforesaid three sections of the Cooperative Societies Act, 1925 it become crystal clear that the aforesaid three sections deal with a situation in which dispute touching the business of society is involved. However, in the instant suit the dispute between the plaintiff and the defendants Nos.1 to 42 arises out of the tripartite agreement dated 28-7-2007 entered into between the defendant No.1 and defendants Nos.2 to 42 and the plaintiff Messrs Y.G. Investment and Developers, wherein the defendant No.1 is identified as Vendor Group-A and the 42 flat owners of the project are identified as Vendor Group-B. Whereby Vendors and Vendee agreed to purchase 42 flats situated on Plot Nos.G-7 and 8 measuring 7520 square yards with construction thereon four block consisting of 42 flats Main Khayaban-e-Jami, KDA Scheme No.5, Clifton, Karachi.
64. ' The case-law relied upon by the learned counsel for the defendant No.1 with regard to the maintainability of the suit under sections 54, 70 and 70-A of the Co-operative Societies Act, 1925 does not at all define the meaning of the business of the society, however, by mere perusal of the aforesaid agreements it becomes crystal clear that the dispute involved in the present suit is not at all related to the business of the society, therefore, I hold that the present suit is not barred by the aforesaid three sections of the Co-operative Societies Act, 1925.
65. ' Moreover, the interpretation of the order dated 20-1-2010 is also quite relevant while deciding the application under Order. VII, Rule 11, C.P.C., 1908 for rejecting the plaint for being barred by Iaw and not disclosing any cause of action being accrued to the plaintiff for filing the instant suit. It is an admitted position that the parties voluntarily agreed vide order dated 20-1-2010 that the suit should be proceeded with in a special and particular manner, at which point of time the defendants could have taken the pleas that they have taken now against the maintainability of the suit, however, the defendants extended tacit approval to the maintainability of the present suit by giving consent to the aforesaid order, which was passed in their presence and they agreed that the suit should be proceeded with and decided in a specific manner. Now the defendants cannot turn around and take the plea :of maintainability of the suit being an afterthought after acquiescing to its maintainability as aforesaid.
66. ' I, therefore see no merit in this application, which is dismissed however, with no order as to costs.