1. The plaintiff has filed this suit under Order XXXVII, C. P. C. Against the defendants for recovery of Rs.
2. 7,59,586.03.
3. Briefly the facts are that defendant No. 1 is a partnership firm of which Mian Muhammad Yaqoob and Mian Muhammad Shall were the partners. Defendants Nos. 2 and 3 are the sons and legal heirs of Mian Muhammad Yaqoob while defendant No. 4 has been described as a company which is controlled and managed by defendants Nos. 2 and 3 who are its Directors It is alleged that the defendant No. 1 had an account with the plaintiff's Foreign Exchange Branch at Karachi and at the request of its partners over--draft facilities were granted to defendant No. 1. In consideration of the loan granted to defendant No. 1 the two partners executed a promissory note on 9-6-1972 for Rs. 6 lacs together with letter of guarantee. The facility was utilized by defendant No. 1 and upto March, 1977 defendant No. 1 and or defendant No. 4 made part payments and thereafter they failed to pay anything. On demand being made defendant No. 4 undertook to pay the said money due from defendant No. 1 and further on or about 5th December, 1977 defendants Nos. 2 and 3 assumed liability for repayment of the amount due and payable to the plaintiff by defendant No. 1 and guaranteed its repayment. On 5-7-1977 defendants Nos. 2 and 3 also executed promissory note for Rs. 7,00,000 but no payment was made. According to the plaintiff the defendant No. 1 was liable to pay Rs. 7,59,586.03 as on 5-10-1978. After the summons was served defendant No. 1 filed an application under Order XXXVII, rule 3, C. P. C. As defendants Nos. 2 to 4 did not appear the suit was decreed against them on 10-5-1981.
4. Mr. Hassan A. Shaikh the learned counsel who is stated to represent defendant No. 1 raised objections to the effect that no firm exists in the name and style of Mian Muhammad Yaqoob and Mian Muhammad Shall and as such the suit is not maintainable. Alternatively be contended that as the alleged firm of Mian Muhammad Yaqoob and Mian Muhammad Shall is not registered under section 69 of the Partnership Act the suit is not maintainable. For consideration of these two legal objections leave was granted to defendant No. 1 unconditionally and defendant No. 1 was asked to file the written statement. As defendant No. 1 did not file any written statement the matter has been fixed for final disposal.
5. As defendant No. 1 has failed to file any written statement the suit can be decreed straight away under Order XXXVII, Rule 2, C. P. C. However, in due deference to the arguments addressed by the learned counsel for the parties I would briefly deal with them.
6. Mr. Hassan A. Shaikh the learned counsel contended that he is not representing defendant No. 1 but he is merely appearing on behalf of Mian Muhammad Shafi. The learned counsel has filed separate vakalatnamas for defendants Nos. 1, 2, 3 and 4. In the vakalatnama filed on 16th November, 1980 Muhammad Shafi has signed the vakalatnama describing himself as defendant No. 1. From the order sheet also I find that Mr. Hassan A. Shaikh has been appearing for all the defendants including defendant No. 1. This is further confirmed from the order passed on 10-5-1981 whereby leave to defend was granted to defendant No. 1. The application under Order XXXVII, rule 3, C. P. C.
7. Filed by Mr. Hassan A. Shaikh is on behalf of defendant No. 1. However, the learned counsel has taken the stand that he does not represent defendant No. 1. He has stated that in fact he represents Muhammad Shafi who is alleged to be a partner of defen--dant No. 1. I pointed out to the learned counsel that if he is not representing defendant No. 1 then he has no locus standi to appear as Mian Muhammad Shafi is not a party to the suit. However, he insisted to argue legal points which were raised by him and are incorporated in the order dated 10-5-1981.
8. The first contention is that there is no firm in the name of Messrs Mian Muhammad Yaqoob and Mian Muhammad Shafi and, therefore, the suit against them is not maintainable. No evidence worth the name has been produced to establish that no firm by this name existed at the material time. Although vakalatnama has been filed on behalf of defendant No. 1 which is signed by Muhammad Shafi who is alleged to be the partner of defen--dant No. 1, he has not come forward to file the written statement or make a statement to contradict this position. It has been contended by Mr. Liaquat Merchant the learned counsel for the plaintiff that Mian Muhammad Yaqoob and Mian Muhammad Shafi were two persons who were carrying on the business and transaction in this trade name. The learned counsel has referred to Order XXX, rule 10, C. P. C. Which provides that any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name. Therefore he maintains that since the said two persons were carrying on business in the name and style of defendant No. 1 and executed documents in that name, the suit against trade name is maintainable. A reference has also been made to section 28 of the Partnership Act which provides that any one who by words spoken or written represents himself to be a partner of the firm is liable as a partner in the firm. The promissory note dated 9-6-1972 has been signed by two persons who are alleged to have formed the partnership in the name and style of defendant No. 1. The letters written for obtaining the loan facility, undertaking and letters of instalments were signed by both these two persons. Another letter dated 4th November, 1976 has been filed which is on the letter head of defendant No. 4 but if has been signed for and on behalf of Mian Muhammad Yaqoob Mian Muhammad Shafi. Similar is the position in the letters dated 29-1-1977 and 12th March, 1977. These documents establish that a firm in the name and style of Mian Muhammad Yaqoob Mian Muhammad Shafi was in existence at the material time. The learned counsel for the plaintiff has referred to PLD 1961 Dacca 693 where it was held that a person trading in an assumed or trading name may be sued in his trading name under Order XXX, rule 10, C. P. C. But it cannot sue in that name. In the circumstances the suit against defendant No. 1 is maintainable.
9. It was next- contended by Mr. Hassan Shaikh that as defendant No. 1 is not a registered. Firm. No suit can be filed against it. The learned counsel has relied on section 69(3) of the Partnership Act which provides that the bar imposed under section 69 subsections (l) and (2) shall also apply to a claim of set of' or other proceedings. Relying on the cases reported in PLD 1966 SC 328, PLD 1968 Lah. 712 and AIR 1964 SC 1882 hems contended that as the words `other proceedings' in subsection (3) of section 69 mean any other civil proceeding or action, no suit can be filed against an unregistered firm to enforce a right arising from a contract. This contention on the face of it has no force. Under section 69(1) a suit to enforce a right arising from the contractor conferred by the Partnership Act filed by or on behalf of any person suing as a partner in unregistered firm against the firm or person alleged to be or to have been a partner in the firm is barred. Likewise under subsection (2) of section 69 a suit arising from a contract by or on behalf of an unregistered firm against any third party is also barred. Subsection (3) applies the bar provided under subsections
(1) and (2), to a claim of set oTor other proceedings to enforce a right arising from a contract.
10. However, there are certain exceptions provided in subsection (3) which are not relevant for the present controversy. Situation may arise when an unregistered firm or a partner of an unregistered firm may have been sued and if he wishes to claim a set of in that suit the bar provided by section 69, subsections (1) and (2) for institution of a suit to enforce a right -arising from a contract shall apply. The same bar shall apply if an unregistered firm or any of its partner wishes to enforce a right arising from a contract through any proceedings other that a suit. The case of PLD 1968 Lah.
11. 712 is a clear example of this elucidation. While explaining the words "other proceedings" the Court was of the view that it will cover all proceedings in Court of law which are not suits in generic sense of word to enforce the right arising, from partnership contract and, therefore, proceedings under section 8 of Arbitration Act, 1940 were held to be covered by the word "other proceedings" and the bar imposed by section 69(1) and (2) was made applicable to such proceedings. By no stretch of imagination it can be contended that the bar provided under section 69, subsection (3) contemplates that no action to enforce a right under the contract can be instituted against a firm which is not registered. In view of this discussion I decree the suit against defendant No. 1 as prayed, with costs.