1989 PLP 3647 (MLD)

This Civil Revision has been filed under section 25 of Small Cause Courts Act, 1887 (hereinafter referred to as the Act) by the unsuccessful defendant No.3. The facts leading to the filing of the above revision are that a consignment of 571 POLYLANS containing Chemicals Hyderogen Peroxide 35% weighing 20,670.2 kgs was entrusted by the shipper at the port of Shipment of Antwerp in good order and condition to the respondent No.2 who having received the said consignment on board the Vessel "SAUDI AL OASEEM" issued clear Bill of the Lading No.76 in acknowledgement thereof after charging freight in foreign exchange in advance which was prepared added to the cost of the consignment imported by the Consignee M/s Yousuf Company who in terms of the said Bill of Lading were entitled to receive the consignment on discharge from the vessel at Karachi Port exactly in the same quantity and the good order and condition in which it was shipped. The respondent No.1 filed suit bearing No.429 of 1984 against the respondent No.2 for recovery of Rs.2,651 in the Court of Small Causes at Karachi. The respondent No.2 is a foreign shipping company carrying on business at Piraeus, Greek. On arrival of the vessel the respondent No.3 acted as agent in terms of general guarantee furnished by them to the Custom authorities of Pakistan in terms of which the respondent No.3 is liable to pay claims arising from the discharge of goods from board. The vessel, "SAUDI AL-QASEEM" arrived at' Karachi under their agency. Through letter dated 24-4-1984 the respondent No.3 informed respondent No.1 at the claim should be referred to the petitioner/defendant No.3 in his capacity as their resident representative of the respondent No.2 and accordingly the defendant No.3/petitioner was impleaded as a necessary and proper party to the suit. The said consignment was insured with the respondent No.1 The case as set out in the plaint is that the Vessel "SAUDI AL-QASEEM" arrived at Karachi or about 16-10-1983 and was required to discharge the said consignment against Index No.93 as per manifest of the Vessel under the marks and number and the same good order and condition in which it was shipped. The clearing agent of the consignee complied with Customs and Port Trust formalities and on taking the delivery of the consignment found that from the required quantity of 571 POLYCANS, 561 POLYCANS were available for delivery in Port premises, whereas 10 Cans were found short landed in respect of which letters of enquiry were sent by the clearing agent to respondent No:3 as well as to the KPT. It is the case of the respondent No.l that no response was received from the respondent No.3 whereas KPT authorities issued final short landing report dated 4-8-1984. The consignee notified the claim to the respondent No.l The respondent No.l paid the said amount of Rs.2,900 under letter of subrogation. Ultimately respondent No.l had notified a formal claim to the respondent No.3 for Rs.2,

651. As no response was received whereupon a further reminder was sent by the respondent No.l to the respondents Nos.2 and 3 who failed to pay the claim. The respondent No.l filed the above said suit. The respondent Nos.2 and 3 did not appear though served, the suit was directed to proceed ex parte against respondents Nos.2 and

3. The petitioner contested the suit. He denied his liability in the written statement. On a perusal of the oral and documentary evidence produced by the parties, the trial court decreed the suit against all the defendants including the petitioner vide judgement, dated 3-10-1987 and decree dated 20-10-1987. The petitioner being aggrieved filed the present revision. Mr. M. Shaiq Usmani contended that the decision was not given according to law. He submitted that petitioner was an agent at the relevant time, as such he was not liable to pay the suit amount. On the other hand Mr. Mohammad Ashraf Bhatti learned counsel for the respondent No.l submitted that the decision was according to law. The petitioner was liable to pay the suit amount as he was the resident representative of the respondent No.2. Section 25 of the said Act is in the following terms: "25.The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the record of the case and pass such order with respect thereto as it thinks fit". This Section has been considered by the superior Courts in a number of cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. The most accurate exposition of the meaning of such section is that of Beautmount C.J. (as he then was) in Bell & Co. Ltd v. Waman Hemraj (AIR 1938 Bombay 223) where dealing with Section 25 of the Provincial Small Cause Courts Act, he observed:- "--The object of section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does S.115, Civil P.C. and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Whenever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at". This power of interference by the High Court is not, in my opinion, restricted to a proper trial according to law or error in regard to onus of proof or proper opportunity of being heard. It is very much wider that when, in the opinion of this Court, the decision is erroneous on a question of law which affects the merits of the case or decision is manifestly unjust, this Court is entitled to interfere. The error may not necessarily be as to the interpretation of a provision of law, it may in regard to evidence on record is ignored or finding is such that on the evidence taken as a whole, no Court could, as a matter of legitimate inference, arrive at. It is neither possible nor desirable to enumerate all cases which would fall within the jurisdiction of this Court under Section 25 of the Act but it is not to be narrowly interpreted not .to be so widely interpreted as to convert the revision into an appeal on facts. The last contention of the petitioner is that the petitioner was not the agent of the second respondent at the relevant time. Section 55 of the Customs Act provides that the appropriate officer may refuse to give port clearance to vessel or permission for departure to any other conveyance until the agent, if any, delivers to the appropriate officer declaration in writing to the effect that he will be liable for any penalty imposed under clause 24 of the Table under subsection(1) of Section 156 and furnishes security for the discharge of the same. Clause(e) provides that the agent, if any, delivery to the appropriate Officer declaration in writing to the effect that such an agent is answerable for the discharge of all claims for damage or short delivery which may be established by the owner of any goods comprised in import cargo in respect of such goods Sub- Section (2) of Section 55 provides that an agent delivering a declaration under clause (d) of Sub section (1) shall be liable to all penalties which might be imposed on the person incharge of such conveyance under Clause 24 of the Table under sub section (1) of Section 156, and an agent delivering a declaration under Clause (e) of Sub Section (1) shall he bound to discharge all claims referred to in such declaration. A shipping agent delivering a declaration under Clause (d) of this Section shall be liable to all penalties which might be imposed on the matter under clause 24 of the Table under Sub-Section (1) of Section 156 and a shipping agent delivering a declaration under Clause (e) of this Section shall be bound to discharge all claims referred to in a claim. My brother Saleem Akhtar, J. in M/s. Crescent Sugar Mills and Distillary Ltd. v. M/s. American Export Israndt Sen Inc. & 2 others (PLD 1983 Karachi 29) came to the conclusion that "the effect of these declarations has been specified in Section 55(2). The agent will be liable to pay all the penalties specified above and shall also be liable to satisfy the clams relating to short delivery and damage to import cargo as specified in declaration. Such satisfaction of the claim is however subject to condition specified in section 55(i)(e) that agent's liability will arise only after the damage or short-delivery is established. The agent's liability is therefore not independent of his principle. It is co extensive with the carrier and unless the claim is admitted, before holding the agent liable the claiment should establish his claim for damage or short delivery against the carrier". I am in respectful agreement with this decision of my learned brother for the reasons given by him m the above judgment and as such I am of the opinion that learned Judge by which he came to the conclusion that the petitioner is liable cannot be sustained and consequently I set aside this finding. The finding of the learned Judge is that Exhibit 23 clearly shows that the petitioner was authorised by respondent No.2 as their representative to attend to all such matters for and on their behalf in Pakistan. I have perused Exhibit

23. A perusal thereof would show that the petitioner was authorised to attend all such matters for and on their behalf in Pakistan for which he may receive specific instructions from the second respondent. It is well-settled principle that power of attorney has to be construed strictly. The attorney is always a delegate of the authority conferred upon him. It is well recognized principle that delegate cannot act unless he has been specifically authorised to do. Therefore any act done by such agent cannot bind the principal. It has come in evidence that petitioner used to be the resident representative in Pakistan with effect from 6-8-1984. This aspect was also not considered by the trial Court. The legal position having been totally misconceived by the trial Court and there being an assumption of the position which the respondent No.1 Was required to prove by evidence, the decree is modified to the extent that the petitioner is not liable. The suit is dismissed against the petitioner. The revision is accordingly allowed and the judgment of the trial Court is modified to the extent that the petitioner is not liable. The net effect is that the suit against the petitioner is dismissed. In the circumstances of the case, the parties shall bear their own costs. H.B.T./A-579/K Revision allowed.