1. ' By this order I propose to dispose of C.M.As. Nos.704/1998, 705/1998 and 706/1998 filed by the defendant. The facts relevant for the purposes of disposal of aforesaid applications, as stated in the plaint, are that the plaintiff is a sole proprietary concern and was awarded a contract by the defendant for the construction of a building/plant. After completion of the contract for construction of the building, final accounts were taken and an amount of Rs.6,35,000 was found due and payable by the defendant to the plaintiff. Subsequently, the defendant, on persistent demand of the plaintiff, issued ten post-dated cheques of Rs.50,000 each and a post-dated cheque of Rs.35,000 only for different dates encashable between 1-7-1997 to 1-5-1998. As to the balance of Rs.1,00,000 the defendant made a promise to the plaintiff for payment of the same in cash. Out of the aforesaid 11 cheques, 4 cheques of Rs.50,000 each were presented by the plaintiff to the bankers of the defendant between 1-7-1997 to 1-11-1997 but all the four cheques were dishonoured by the bank. After dishonouring of the said four cheques, the defendant was approached by the plaintiff but the defendant refused to arrange payment of the dishonoured cheques with the result that a legal notice of demand was served on the defendant by the plaintiff through its advocate.
2. The defendant, in reply thereto, not only denied having issued the said cheques in favour of the plaintiff but also denied its liability to pay any amount to the plaintiff. The plaintiff has, therefore, filed the instant suit for recovery of Rs.5,35,000 being the amount of aforesaid cheques under Order 37, Rules 1 and 2, C.P.C. And for a decree of Rs.1,00,000 against the defendant for the loss and mental torture suffered by it on account of non-payment of the outstanding amount.
3. ' The defendant was served with the summons of the suit on 19-12-1997 and on 3-2-1998 filed C.M.A.No,705 of 1998 under Order 37, Rule 3, C.P.C. For leave to defend the suit unconditionally. Since C.M.A. 705 of 1998 was filed by the defendant beyond the statutory period of ten days prescribed under Order 37, Rule 2, C.P.C., an application being C.M.A. No,704 of 1998 under section 5 of the Limitation Act, 1908, was also filed by the defendant for condonation of delay in filing the application for leave to defend. Simultaneously, another application C.M.A. No,706 of 1998 was also filed by the defendant under Order 7, Rule 11, C.P.C. For rejection of the plaint on the ground that the suit has been filed in the name of and by an unregistered proprietary firm and as such the same is not maintainable.
4. ' I have heard the learned counsel appearing for the parties and perused the record. It is an admitted position that summons of the suit were served on the defendant on 19-12-1997 and the application for leave to defend the suit,required to be filed by the defendant within ten days of the service of summons, was filed on 3-2-1998 which, on the face of it, is hopelessly time-barred. An application for condonation of delay (C.M.A. No,704 of 1998) was filed by the plaintiff on the ground that the chief executive of the defendant Maqsood Illahi developed cardiac problem on account of which he was advised complete bed rest up to 2-2-1998. In support of such assertion a medical certificate dated 3-1-1998 issued by Dr. Sadaf Rehman has been placed on record by the defendant. A perusal of the medical certificate reveals that the chief executive of the defendant, in view of his coronory bypass, was advised complete bed rest for a period of one month. The medical certificate produced by the defendant is vague inasmuch as it does not give the period of bed rest nor does it provide the date when the said chief executive of the defendant underwent coronory bye-pass surgery. In any event, the defendant is a limited company and in case its chief executive was unwell the application for leave to defend could have been filed by some other director of the company. It may further be stated that it is a well-established law that a party seeking condonation of delay is required to explain satisfactorily delay of each and every day. In the case in hand, the summons of the suit was served on the defendant on 19-12-1997 and the period of ten days for filing leave to defend application expired on 29-12-1997. There is no plausible explanation for non-filing of the leave to defend application between 19-12-1997 and 29-12-1997. In fact, when pointed out, Mr. Zia Pervez, learned counsel for the defendant, has frankly conceded that the delay in filing the application for leave to defend has not been satisfactorilly explained by the defendant.
5. ' In the circumstances, C.M.A. No,704 of 1998 is dismissed and resultantly C.M.A. No,705 of 1998 filed by the defendant for leave to defend the suit is also dismissed as time-barred. Since the defendant has been refused leave to appear and defend the suit, C.M.A. No,706 of 1998, filed by the defendant for rejection of plaint under Order 7, Rule 11, C.P.C., is also dismissed.
6. Order 37, Rule 2(2), C.P.C. Provides that in a case where the defendant fails to appear and files an application for leave to defend the suit or in case an application for leave to defend has been dismissed, the allegations contained in the plaint shall be deemed to be admitted. However, in my view, if from the averments of the plaint it is, prima facie, apparent that the suit suffers from any legal defect, a duty is cast upon the Court to examine the question of maintainability of the suit. A perusal of the plaint reveals that ten post-dated cheques of R.50,000 each and one that of Rs.35,000 encashable on different dates ranging between 1-7-1997 to 1-5-1998, were alleged to have been issued by the defendant to the plaintiff. Out of these eleven cheques, admittedly, only four were presented to the bankers of the plaintiff before filing of the suit and the same in fact on having been presented were dishonoured by the bankers of the plaintiff. Therefore, the plaintiff, in my view, at best, could have filed the suit for recovery of the amount which was subject-matter of the four dishonoured cheques.
7. ' Another most important aspect of the matter is that the instant suit has been filed by M/s. Ahan Saz Contractors which, admittedly, is a proprietary concern of one Muhammad Riaz Awan. Order 30, C.P.C. Deals with the suits filed by or against the firms and persons carrying on business in the names other than their own. Rule 1 of Order 30, C.P.C. Provides that any two or more persons claiming or 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. Order 30, Rule 10, C.P.C. Provides that any person caruying 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.
8. Comparative study of Order 30, Rule 1, C.P.C. And Order 30, Rule 10, C.P.C. Reveals that Order 30, Rule 1, C.P.C. Which deals with suits by a partnership firm permits filing of suits by or against a partnership firm whereas Order 30, Rule 10, C.P.C. Which deals with suit in the name of the proprietary concern specifically provides only for filing of suits against a proprietary concern in its name but does not provide for filing of a suit by a proprietary concern as it does not have any legal status/character as distinct from its proprietary. Thus a proprietary concern can be sued in its name but it cannot sue in its own name. The question as to whether a proprietary firm can sue in its own name came under consideration in the case of Ismail Haji Sulaiman v. Messrs Hansa Line and another (PLD 1961 Dacca 693) and Habib Bank Limited v. Iqbal I. Chundrigar (1983 CLC 1464).
9. ' In the case of Ismail Haji Sulaiman (supra) suit was filed in the name of Ismail Haji Sulaiman a proprietary firm instead of "Ismail Haji Sulaiman, a proprietor of the firm" and on an objection having been taken in respect of maintainability of the suit, an application for amendment in the title of the plaint was filed which was opposed by the defendant contending that if the amendment is allowed the plaintiff would only be entitled to such relief as he could have claimed if the suit had commenced on the date of the aforesaid amendment. It was, however, contended on behalf of the plaintiff that the amendment sought in the title of the plaint is nothing but correction of description of the plaintiff and as such the suit cannot be deemed to have been instituted when the said amendment is made. From the aforesaid case it appears that the suit was dismissed by the Court of Original Jurisdiction as well as by the Court of 1st Appeal and the matter came up before the High Court in 2nd Appeal which was decided on the point as to whether the suit, as framed, is maintainable and if not whether the amendment sought can be allowed. After discussing the case reported in 35 CWN 432 and AIR 1932 Bom. 516, it was held that amendment of wrong description of title would not attract bar of section 22(1) of the Limitation Act, 1908, as the amendment of a nature sought by the plaintiff in the suit is mere correction of description of the plaintiff in the title of the suit.
10. ' In the case of Habib Bank Limited (supra) Mr. Justice Saleem Akhtar (as his lordship then was), after referring to the cases reported in AIR 1924 Born. 109 and AIR 1930 Born. 216, has held as under:- - " A proprietary firm cannot have any legal status as distinct from its proprietor. It is the proprietor who is the legal person entitled to all the benefits and liable for the liabilities that accrue in that account. In ' the eye of law the proprietor and proprietary firm are one and the same person. A reference can be made to AIR 1924 Born. 109 and AIR 1930 Born.
216. It is well established that a proprietary firm cannot sue in its own name. It is the proprietor who can sue for claims that may arise in the name of proprietary firm. It is thus established that each and every liability which the proprietary firm incurs is the liability of the proprietor himself. In fact it is the proprietor who is carrying on the business in the name and style of a firm taking upon himself the burdens and benefits."
11. ' The instant suit has been filed in the name of M/s. Ahan Saz Contractors through its sole proprietor and the plaint has been verified Muhammad Riaz Awan as sole proprietor of the plaintiff, as is apparent from the title of the plaint and verification of the same.
12. ' It has been vehemently contended by the learned counsel for the plaintiff that the suit, as framed, is maintainable and non-filing of the same in the name of proprietor of the plaintiff may, at best, be a technical defect on account of which suit cannot be dismissed as technicalities should not be allowed to come in the way of dispensation of justice. The question as to whether filing of the suit in the name of a proprietary concern instead of in the name of a proprietor is not a question of mere technicalities, in view of afore-referred judgments. The filing of a suit in the name of a proprietary concern is, in my view, a legal defect and not merely a technical flaw and for such legal defect the suit is liable to be dismissed. In view of afore-mentioned case of Ismail Haji Sulaiman (supra) it was open for the plaintiff to file an application for amendment in the title of the plaint but it is regretable that, in the instant case, no such attempt was made by the'plaintiff. In fact, such amendment could have been allowed by the Court on an oral motion of the plaintiff or its counsel but no such oral request was made by the plaintiff or its counsel. Here a question may be posed as to why the Court on its own motion and/or suo motu did not amend the plaint in order to impart substantial justice.
13. Answer to such a question is that, by now, it is a well-settled law that amendments in the pleadings cannot be made by the Court suo moto and reference in this connection be made to the following two cases:--
(i) Karim Dad v. Arif and another, PLD 1978 Lah. 679); and
(ii) Irfan Iqbal and 2 others v. Chaudhary Muhammad Hand and 4 others (PLD 1985 Lah. 523).
14. ' In view of the above discussion, I am left with no option but to hold that the instant suit, as framed, is not maintainable and as such the same is dismissed. However, in view of peculiar circumstances of the case, there will be no order as to costs.