P L D 1973 Lahore 403 (PLP)

4. The respondent‑contractor is again Sh. Abdur Rashid. The wood purchased in open auction was in compartment No. 10 of the forest and the rate is Rs. 60.06 per hundred c.ft. The bill prepared and the amount paid after the second measurement by the Forest Range Officer was of the order of Rs. 18,978.69 and the further demand raised by the Divisional Forest Officer on account of excess measured by him is Rs. 2,938.70. All other facts are almost the same as In Regular Second Appeal No. 759 of 1969.

5. The contractors in all the three cases refused to pay the further demand raised and filed three separate suits contesting their liability for the amount demanded. The suits have been resisted by the Provincial Government mainly on the ground that absolute property In the goods did not vest in the contractors before the final measurement by the Divisional Forest Officer, as the second measurement by the Forest Range Officer, on the representation of the contractors against the measurement made by the Forest Guard, had been carried out in collusion with the contractors and did not reflect the actual measurement and the Government was entitled to charge for the actual quantity to be delivered to the vendee contractors at the stipulated rate. The trial Court decreed the suits with the further observation that since the wood had been permitted to be removed after depositing the excess price demanded by the Department, the prayer of the plaintiffs for grant of an Injunction had become redundant. The Provincial Government has remained unsuccessful In its appeal before the Additional District Judge, who has held that there is no evidence on the record about the alleged collusion of the Range Forest Officer with the contractors and that as per clause 10 of the agreement (Exh. D. 7), the contractors were not entitled to remove the wood till the measurement of the wood by the Forest Officer or an officer deputed by him had been made and payment of price in full made by the contractors and written permission to remove had been obtained from the Forest Officer, and that all the three conditions having been fulfilled the contractors became undisputed owners of the wood in terms of the agreement and the provision of the Sale of Goods Act.

6. In these appeals before me, the learned counsel for the respondents‑contractors had raised two preliminary objections to the maintainability of these appeals. It has been firstly contended that the judgment by the lower appellate Court having been pronounced on the 27th of March 1969, the appeals filed in this Court on the 1st of September 1969, are beyond time even after deducting the time taken for obtaining certified copies of the judgments and decrees of the lower appellate Court as also of the trial Court. A reference to the certified copies placed on the record shows that in all the three appeals, applications for obtaining copies of the judgments and decrees of the lower appellate Court were made on the 3rd of April 1969. The copies were ready for delivery on the 28th and 29th of April and 2nd May 1969 respectively. Again the trial Court's judgment was applied for on the 13th of June 1969 and was available for delivery on the 25th of June 1969. Now adding the period spent in obtaining the copies of the judgments and decrees of the lower appellate Court and thirteen days of the trial Court to the statutory period of ninety days for filing an appeal in this Court, the appeals could have been filed within 129 days, 130 days and 133 days from the 27th of March 1969. This period expired during the longer summer vacation of this Court, which had started on the 7th of July 1969 and was to end on the 6th of September 1969. Therefore, the appeals as filed on the 1st of September 1969, were perfectly within time. Faced with this situation, learned counsel attempted to argue that the appellant could get allowance of the period spent In obtaining copies of the judgments and decrees of the lower appellate Court but could not take benefit of the time taken in obtaining copies of the judgments of the trial Court. Appending the copy of the trial Court's judgment to the memorandum of appeal has been made obligatory by amendment of Order XLII, rule 1, C. P. C. and strictly speaking, the period taken in obtaining such a copy is not to be reckoned under section 12 of the Limitation Act, yet because filing of the said copy has been made necessary by the rules of this Court. It has always been considered that time spent for obtaining such a copy is to be reckoned by extension of the principles of section 5 of the Limitation Act. Even otherwise, because the summer vacation had started on the 7th of July 1969. the period of 90 days plus the time spent in obtaining copies of the judgments and decrees of the lower appellate Court would make the period for filing the appeal in this Court terminate during summer vacation and if before the re‑opening of the High Court the appeals had been filed they could not be held to be barred by time. In view of these facts, learned counsel for the respondents did not press his objection further.

7. The other preliminary objection raised Is In respect of the locus stands of the Punjab Province to prosecute the appeals filed by the West Pakistan Government in the first instance. The objection has been met by learned counsel for the appellant with reverence to the Province of West Pakistan (Dissolution) Order, 1970 (President's Order No. 1 of 1970), wherefrom Paragraph 20(1)(d) and (h) is reproduced below :‑ "

20. Power to make other provisions.‑The President may, by order, make such provisions as may appear to him to be unnecessary or expedient for‑

(a) (b) .. (c) .. (d) Succession to, and transfer of, the rights, properties, assets and liabilities of the Government of West Pakistan and the apportionment and adjustment of such rights, properties, assets and liabilities among the Central Government and the Governments of the new Provinces; (e) .. (g) .. (h) defining and varying the constitution, powers and jurisdiction of the Courts and other authorities for the purpose of exercise of powers and jurisdiction in the new Provinces, continuance of pending legal proceedings by or against the Province of West Pakistan, or any authority of the said Province, substitution of parties for the purpose of such continuance, enforcement of decrees or orders of any Court or tribunal and all other matters connected with legal pro ceedings; He has also referred to the Dissolution of West Pakistan Province (Rights. Properties, Assets and Liabilities) Order, 1971 (President's Order 2 of 1971). Paragraphs 23(1)(b) and 28 (reproduced below) have been relied upon; "23. (1) All rights, properties, assets and liabilities of the Province of West Pakistan for the apportionment of which no specific provision has been made in this Order shall, until pro vision to the contrary is made, vest‑

(a) . .. (b) if they are identifiable as being relatable to any one of the new Provinces, in that Province;

28. Where immediately before the appointed day the Province of West Pakistan was a party to any legal proceedings with respect to any rights, properties, assets or liabilities transferred by or in accordance with the provisions of this order, the new province or the President succeeding to the rights, properties, assets or liabilities shall be deemed to be substituted for the Province of West Pakistan as a party to those proceedings and the proceedings may continue accordingly." Reading the aforesaid provisions in juxtaposition, no room for doubt is left that the Punjab Province being' the successor of the cause of action relatable to the appeals before me and by B virtue of paragraph 28 of President's Order 2 of 1971 is competent to prosecute and continue the appeals as successor of the Province of West Pakistan.

8. After having dealt with the preliminary objections, now I proceed to examine the legal question argued on behalf of the appellant. Mr. Nemat Khan, Advocate, has not contested the finding of fact arrived at by the two Courts below. He has, however, based his argument on the language of section 22 of the Sale of Goods Act, which provision may be reproduced with advantage:

22. Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing is done and the buyer has notice thereof." It has been argued with vehemence that since the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price the property in the wood did not pass to the contractors until the stacks of the wood bad been properly measured by the Department. According to him, the second measurement carried out by the Forest Range Officer was not correct and the Divisional forest Officer, Muzaffargarh, having detected the inaccuracy was legally justified to have a third measurement before actual delivery of the goods to the contractors and as a consequence ft the wood In the stacks had been found in excess of the price paid, the raising of a further demand for the excess wood was in no manner illegal or unjustified. He has also relied on two English decisions, namely, Hanson v. Meyer (8 R R 572) and Legan v. Le Mesurfer (79 R R 10). In Hanson v. Meyer, the defendant sold a specific parcel of starch at 6 per cwt., and directed the warehouseman to weigh and deliver it. Part was weighed and delivered, and then the purchaser became bankrupt, whereupon the seller countermanded the order for delivery of the remainder, and took it away. In an action for ever brought by the assignees of the bankrupt purchaser, Lord Ellenborough said, that the act of weighing was in the nature of a condition precedent to the passing of the property by the terms of the contract, because "the price is made to depend upon the weight": The proposition of law laid down In this case is In no way different from section 22 of the Sale of Goods Act. In Legan v. Le Mesurier, the sale was on December 3, 1834, of a quantity of red‑pine timber, stated to consist of 1,391 pieces, measuring 50,000 feet. more or less, to be delivered at a certain boom In Quebec, on or before June 15, then next, and to be paid for by the purchasers' notes, at the rate of 9 d. per foot, measured off. If the quantity turned out more than 50,000 feet, the purchasers were to pay for the surplus, on delivery, at 9 d., and if it fell short, the difference was to be refunded by the sellers. The purchasers paid for 50,000 feet, before delivery according to the contract. The timber did not arrive In Quebec till after the day prescribed in the contract, and when it did arrive, the raft was broken up by a storm, and a great part of the timber lost before i1 was measured and delivered. Their Lordships of the Privy Council held that the former part of the contract whereby an ascertained chattel was sold for an ascertainable sum, was controlled by the latter part providing for admeasurement and adjustment of the price on delivery at Quebec, and accordingly that the property was not transferred until measured, and that the purchaser could recover back the price paid for all timber not received, and damages for breach of contract. This decision also does not advance the appellant's case. To my mind the case more in point 1s Gilmour v. Supple (117 R R 97). In this case the respondent entered Into a contract in writing, for the sale to the appellant of 'a raft of timber now at Garouge, containing, white and red pine, the quantity about 71,000 feet, to be delivered at Indian Cove Booms. Price for the whole 71d. per foot. Payment one‑third cash, one‑third sixty and ninety days after date.' Shortly before the contract was signed, the raft had been measured by a public officer, called the supervisor of cullers, appointed under the Canadian Act, 8 & 9 Vict. c. 49, and the number of pieces of timber and the contents of each piece was set down fn a specification thereof, which made a total of 71,445 feet, and this specification was delivered by the respondent, before the execution of the contract, to the appellant, and sent by him to the place where the raft was to be delivered. The raft was towed to the Indian Cove Booms, the appointed place for delivery, where It arrived in the afternoon, and notice of its arrival given to the servants of the appellant, who assisted in fastening the raft outside the booms. This was done at the instance of the appellant's servant, as, froth the state of tide, the raft could not be placed inside the booms. During the night a storm arose, by which the raft was carried away, broken to pieces and dispersed, and a great portion of it lost. The appellant employed his servants in collecting as much of the wood as was saved, and that was put into the appellant's booms. Their Lordships of the Privy Council held that as the respondent had ascertained the price of the raft by the measurement previously made, the specification of which was in the appellant's possession, and as the contract did not show that any future measurement of the raft was necessary, no act then remained to be done by the respondent or by the appellant, and that the raft, upon delivery at the Indian Cove Booms, had wholly passed to the appellant, and the loss incurred must be borne by him. The facts before me are almost similar to Gilmaur v. Supple. The wood had been agreed to be sold to the contractor at an agreed rate for quantity to be measured and ascertained after felling the trees and stacking it in the relevant compartments. The wood when stacked by the contractors was to be measured and the price ascertained. For this purpose although the first measurement was not accepted by the contractors, the second measurement was arranged under orders of the Conservator of Forests by the Forest Range Officer, an officer deputed by him and on the basis of this second measurement accepted by the parties, the quantity and price were ascertained, the contractors were billed, payment was made by them and received by the Department and then permission granted by the Forest Officer concerned to remove the same. On these facts when measurement had" been made and actual price ascertained by the seller and paid also by the buyers, it cannot be said that property in the goods had not passed to the buyers and the seller was at liberty to make a third measurement (authenticity of which has remained unproved on the record) in the absence of tire buyers and charge for the alleged excess. The process of measurement for the purpose of ascertaining the price of the goods sold is not endless. According to the clear provision of section 22 of the Sale of Goods Act, the action taken by the Divisional Forest Officer was without any authority or law and the decrees granted by the Courts below call for no interference.

9. The result is that the appeals fail and are dismissed. The respondent‑plaintiff in each appeal will have his costs before this Court. K. B. A. Appeals dismissed.