P L D 1957 (W (PLP)

CONSTANTINE, J.

This is an appeal against the judgment of Mr. Justice Agha, as he then was, decreeing the plaintiffs' suit for the value of three bales of handloom cloth short landed from the defendants' steamer S. S. Gazana. This steamer arrived in Karachi on the 23rd August 1948, and the plaintiffs, instead of getting the full number of bales, according to the bill of lading, have failed to obtain delivery of three bales. As regards one bale the defence was that the plaintiff's claim was premature ; this defence has rightly been abandoned in appeal. The only ground for contending that the claim was premature was that the defendants were still making inquiries at other ports of call of of the ship. As regards the other two bales, the defendants pleaded that they had Port Trust truck notes in their possession for fourteen bales, which included the two in dispute. The defendants also stated " The damages claimed are disputed and denied." The main point in this appeal is whether the learned Judge was correct in refusing to take in evidence -the documents described as "Port Trust Truck Notes". These are docu ments which a Port Trust tally clerk and a clerk on behalf of the shippers purported to sign in token of the goods having been handed over to the custody of the Port Trust on discharge from the ship. The plaintiffs led the evidence of Fernandes, the Head Clerk in the plaintiffs' Claim Section, who described what such Port Trust truck notes are. The neat witness was Zahuruddin, the Traffic Supervisor of the Karachi Port Trust who said that the Karachi Port Trust issues four copies of truck notes keeping two and giving two to the agents of the steamer. Then Mr. Abbott, the Deputy Traffic Manager of the Karachi Port Trust, was put into the boa. The record shows no examination of this witness, but we have on record the application of defendants to the following effect : " The defendants wished to put the following question to the witness Mr. Abbott. Question: What are the five documents shown to you ? The question was not allowed by this Hon'ble Court. The five documents are attached herewith and it is prayed that this Hon'ble Court will place them on record and note that the question was not allowed". There upon the learned judge recorded an order. He said that Mr. Lobo instead of proving directly through the party who had signed these documents or written them had tried by inadmissible evidence to bring these documents on record, by asking witnesses who did not know anything about the hand-writing of these documents. The learned judge continued that Mr. Abbott showed his ignorance about the hand-writing and said that these purport to be truck notes. This, however, was not admissible evidence and therefore the question and answer were not brought on record. If Mr. Lobo wished to prove the documents he should do so by proper evidence. Mr. Lobo also wished at a later stage to bring documents on record to show that Karachi Out-Turn reports in the past had often been mistaken and had required correction. Correspondence between the parties includes letters from the defendants. In January 1949, Exh. 5/8 they said that their inquiries for the above packages were in progress. In March 1949, they asked the plaintiffs to submit their claim in triplicate, together with the shipper's original invoice to enable them to deal with it and stated that replies to their tracers had not been received from the steamer's other ports of call and as soon as these were completed the claim would be dealt with. On the 23rd March 1949, they said that they had Karachi Port Trust Truck Notes for fourteen bales landed and one bale appeared to be short. They were referring the matter to the Karachi Port Trust. On the 14th May 1949, they said that the three bales had been shown as short-landed in the Karachi Port Trust Out-turn Report. The Port Trust advised them that the steamer had discharged some bales with the marks P. P. N. S. and enquired if the plaintiffs would accept : these bales against the shortages. The plaintiffs refused this offer. On the 26th May the defendants said that they had referred the matter to the Port Trust regarding the landing receipt granted by them and their reply was still awaited. It is clear that the defence of the defendants rested upon the proof of the. Truck Notes in their possession. Mr. Lobo has relied upon section 32 of the Evidence Act. But section 32 requires that there shall be proof that a person cannot be found or cannot be procured without an unreasonable amount of delay or expense before his statement is admitted. This proof is a condition precedent to the reception of his statement under this section. Mr. Lobos application to the trial Court does riot show that he was laying by his question any foundation for the operation of section 32 ; moreover, even as regards section 32 it is necessary to show that the person alleged to have signed did b sign, and no witness was cited to prove knowledge of the handwriting. Mr. Lobo argued that under section 114 we should draw a presumption that these documents had been signed by the person who purported to sign them. We think this would .be a dangerous innovation in regard to Karachi Port Trust Truck Notes which are produced from the custody of a party, for these 'are, printed forms and it would be a maxter, of sortie case to obtain these printed forms and prepare false notes. It is true that shipping companies as .a rule do not lend themselves to such practices, but even so we think it would be a dangerous innovation. Mr. Lobo said that he had asked for an adjournment in order to produce copies (presumably counter-parts) of the Truck notes from the possession of the Port Trust. The record does not show this, but assuming it to be correct (as is perhaps owed to Mr. Lobo's high standing at the bar) we see no reason why the Court should have granted the adjournment. The defendants as early as the 23rd March had staked their defence on these notes, and obviously should have been prepared with evidence. A further point which was not argued has struck us ; there is no explanation why the defendants did not call their own clerk who had purported to sign the truck notes : how ever, since the point was not touched in argument, we merely mention it and draw no inference either one way or the other. Mr. Lakhani had argued that the defence were estopped from relying upon these Truck Notes, but as I have pointed out the Company mentioned' the existence of these truck notes on the 23rd March 1949, while the admission upon which Mr. Lakhani relied is dated 14th May 1949, where the defendants said that the goods had been shown as short-landed in the Karachi Port Trust Out-turn Report. This letter does not, in our opinion, constitute an admission of liability and in any case it has been made after the period of six months prescribed for limitation under the Karachi Port Trust Act had expired and, therefore, it cannot be said that owing to this admission Mr. Lakhani's client delayed a suit against the Karachi Port Trust. Since rhe hearing, however, another aspect of this matter has struck us. The period of limitation for a suit against the Karachi Port Trust is six months, while the period of limitation against the ship is one year. If the ship, coming to know before the expiry of six months of the truck notes relieving the ship of liability and placing liability on the Port Trust, delays informing the consignee who has made his claim to the ship's agents for non-delivery, it appears to us that it might be inequitable to allow the ship's agents to defend a suit by reliance on such truck notes. It is true that there is nothing to indicate when the defendant came to know of the truck notes in this case ; one would think that the truck notes would be delivered to the defendants by the Port Trust soon after the discharge of the goods from the ship in the ordinary course of business and that knowledge of truck notes from that time should be imputed to the defendants. This matter, however, was not argued and we base our decision on the ground that the truck notes were not proved. Mr. Lobo contended that the defendants had failed to prove the market rate of the goods at the date of short delivery. It is true that no question was put to the plaintiffs either in examination-in-chief or in cross-examination regarding the market rate. But the plaint had claimed at the invoice price and the defendants as stated above at one stage asked the plaintiffs to send the invoice to enable them to deal with the claim. It is true that this does not necessarily mean that the defendants admitted the price shown in the invoice, but throughout the correspondence and throughout the conduct of the case there was nothing to suggest that the invoice price did not represent the true value of the goods at the material time. 'Mr. Lobo argued that since the plaintiffs had not put any question to themselves on this point, it was not for the defendants to supply the deficiency in cross-examination. We think, however, that the presump tion is that the invoice represented the true value of the goods when the goods were bought and there is a presumption that a state of affairs continues and relying on this further presumption we think that this price continued to be the market price at the date of short delivery. We, therefore, dismiss this appeal with costs. The order requesting the plaintiffs to furnish security before removing the amount deposited in Court is vacated. A. H. Appeal dismissed.