2004 PLP 2218 (YLR)

(9) Whether the plaintiffs have suffered any loss, business reputation and/or financial loss or mental distress or any damages as claimed in the plaint on account of any act of the defendants? If so whether the defendants are liable for the same? (10) What should the judgment or decree be? The plaintiffs produced one witness in support of its claim namely Pushpa H. Narain the plaintiff No. 3 who was cross-examined. The defendant produced two witnesses from its side and summoned two further witnesses namely Mir Mujahid Ali Khan, the defendant No.2, Muhammad Wasim Iqbal, Manager Exports and Attorney of the defendant No.1 and the two summoned witnesses namely Muhammad Nasim Iqbani, Cargo Manager of Air France and Tariq Rangoonwala. The defendants witnesses‑were cross‑examined. I have heard the arguments of the learned counsel and have gone through the record. Issues Nos.1,2 and 3 were not pressed. The remaining issues being inter connected and inter‑related to the controversy between the parties were jointly argued by the counsel of the parties. Mr. Abdul Qayyum ' Abbasi, learned counsel for the plaintiffs contended that the two airway bills which are the subject of this suit were issued as dummy bills as per practice and supported his contention by referring to the cross-examination of the plaintiff witness. He has referred to articles 5 and 6 of the Convention for the Unification of Certain Rules Relating to International Transportation by Air. He further contended that the said two airway bills were negotiated by the defendants without obtaining full documents of L.C. and further that the letter dated 1‑2‑1988 , in which the defendants have alleged airway bills to be fake has caused tremendous loss to the plaintiffs. He has referred to the case of Gray v. Jones (1939) 1 All. E.R. 798; Lewis and another v. Daily Telegraph Ltd. (1963) 2 AI1.E.R. 151 and C.M.G. Ogilvie v. Punjab Akhbarat and Press Company Ltd. AIR 1929 Lah.

561. On the other hand Mr. Iqbal L. Bawani learned counsel appearing for the defendants has argued that airway bills are title documents and negotiable and heavy duty is cast upon the carrier or its agent to issue true airway bills. The two airway bills in question were negotiable. He further argued that writing of letter by the defendants to the plaintiffs principal did not amount to publication and will not amount to defamation. He further contended that the two airway bills in question were issued by the plaintiffs without receipt of cargo mentioned therein and such fact is also admitted by the plaintiffs. He contended that the words `dummy' and `fake' are synonymous and in this respect relied upon the meaning of word `dummy' given in Blacks Law Dictionary. He further contended that the defendants did not make any allegation of forgery against the plaintiffs. He referred to Article 11 of the Carriage by Air (International Convention), Act 1966. He further contended that the fact that the goods were not received by the plaintiffs of the said two airway bills stand admitted in evidence is further proved by the fact that out of the two airway bills one was amended after the goods referred to therein were delivered by the consignor to the plaintiffs which was after two months of the date of the original bill and the other airway bill was cancelled. He stated that use of the word `fake' in the letter dated 1‑2‑1988 exhibit 5/6 was aptly used. In support of his submission he has relied upon certain passages from Salmond and Houston Law of Torts 20th Edition, on the case of Rustam K. Karanjia and another v. Kirshnaraj M.D. Thackersey and another, AIR 1970 Bombay 424 and the case of P.K. Oswal Hosiery Mills Millerganj, Ludhiana v. Tilak Chand L. Ghasita Ram Jain A. I. R. 1969 Punjab and Haryana

150. The examination of the record shows that material facts of the matter are not in much dispute inasmuch as the plaintiffs admit that they have issued the two airway bills as dummy bills i.e. without receiving of goods mentioned therein from the consignor, that the defendants have negotiated those bills and made payment against them to the consignor, that the defendants have written letter dated 1‑2‑1988 exhibit 5/6 to the plaintiff No. 1 and endorsed its copy to Airfrance, that on defendants grievance, the matter was resolved on the intervention of Mr. Tariq Rangoonwala and out of the two airway bills, consignment in respect of one airway bill after its amendment was delivered and shipped after two months of its original date, and that on the complaint of the defendants through letter dated 1‑2‑1988 exhibit 5/6 Airfrance withdrew all the stocks of airway bills from the plaintiffs thereby implying that plaintiff No.l has ceased to be its Cargo Agent. In view of the above admitted facts, the crucial point on which the matter can clinch is whether the two airway bills in question issued by the plaintiffs were fake airway bills as is alleged by the defendants in letter dated 1‑2‑1988 exhibit 5/6 and that the word so used by the defendants was true or untrue statement. If the answer to this question is in negative, the matter will require further discussion as to its consequences i.e. as to whether it constituted defamation, and whether endorsing of its copy to the plaintiff's principal Airfrance will amount to its publication and the amount of damages to which the plaintiffs will be entitled. However, if the answer to the above question is in the affirmative, in my view, there will be no need to go into further question referred to above. The plaintiffs witness in his cross-examination in respect of the two airway bills has stated as follows:‑ "I am shown the copy of Airway Bill No. 057‑1945‑1670 dated 30‑12‑1987 and Airway Bill No. 057‑1945‑1751 dated 3‑1‑1988 and I say that these are the copies of initial Airway Bills Nos. 057‑1945 1670 and 057‑1945‑1751. I produce them as exhibits 5/1/A and 5/2/B. Further explained that these copies which have been produced by me are the dummy copies of the Airway bills." The plaintiffs witness has further stated in his cross‑examination:‑‑ "By dummy airway bills I mean that these are not genuine airway bills; these are merely a drafts which can be corrected at the behest of the shippers and then the original airway bills are issued". The counsel for the plaintiffs has relied upon Articles 5 and 6 of the Convention for the Unification of Certain Rules Relating to International Transportation by Air singed at Warsaw on 29‑10‑1929 as amended at the Hague on 28‑9‑1959. It may be pointed out that these conventions were applied as law in Pakistan by the Carriage by Air (International Convention), Act 1966. These conventions were incorporated in the First Schedule of this Act. The Convention being part of the Act, its provision will be referred with reference to the Act. Articles 5 and 6 to the First Schedule of the Act are as follows:‑‑ "5:‑‑‑(1) Every carrier of goods has the right to require the consignor to make out and hand over to him a document called an "airway bill"; every consignor has the right to require the carrier to accept this document. (2) The absence, irregularity or loss of this document does not affect the existence or the validity of the contract of carriage which shall, subject to the provisions of rule 9, be none the less, governed by these rules. 6:‑‑‑(1) The airway bill shall be made out by ‑the consignor in three original parts and be handed over with the goods. (2) The first part shall be marked "for the carrier," and shall be signed by the consignor. The second part shall be marked "for the consignee"; it shall be signed by the consignor and by the carrier and shall accompany the goods. The third part shall be signed by the carrier, and handed by him to the consignor after the goods have been accepted. (3) The carrier shall sign prior to the loading of the goods on board the aircraft. (4) The signature of the carrier may be stamped; that of the consignor may be printed or stamped. (5) If, at the request of the consignor, the carrier makes out the airway bill, he shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor." ' The defendants counsel has relied upon sub‑Article (1) of Article 11, which is as follows:‑‑ "11: ‑‑‑(1) The airway bill is prima facie evidence of the conclusion of the contract of the receipt of the goods and of the conditions of carriage. The copies of airway bill which have been produced as exhibits 5/1/A and 5/1//B on the face of its contains stipulation in the following words:‑‑ "It is ' agreed that the goods described herein are accepted in an apparent good order and condition (except as noted) for carriage subject of the conditions of contract on the reverse hereof, the shippers attention is Drawn to the notice concerning carrier's limitation of liability. Shipper may increase such limitation of liability by declaring a higher value for carriage and paying supplemental charge if required." The name and address of the shipper, name and address of the consignee the name of the carrier the airport of departure, the airport of destination, flight numbers and their dates and description of the goods are mentioned in the airway bills. The date of the airway bills is also mentioned so also declared value for customs. In Air Cargo Regulation and Claims by Jean‑Louis Magdelenat. English Language Edition 1983 at page 42 the author has described by the role of airway bill as follows:‑‑ . "As the expression of a consensual contract, the airway bill has an important role to play. As provided by Article 11 of the Warsaw Convention, it is the instrumentum which constitute prima facie evidence of conclusion of the contract, receipt of the goods and acceptance of the condition of contract. With regard to the acceptance to the conditions, it has been seen that the airway bill is effectively a contract of adhesion, or standard form contract since the customer can hardly discuss the clauses and often signs' without reading the text of the conditions. Moreover, a multitude of carbon copies make deciphering difficult. The case of Woods Donegan & Co. Inc. v. T.W.A. concerns the adequacy of notice on the airway bill and thus constitutes the air cargo equivalent of the famous Lisi case." The reading of the text of Articles S, 6 and 11 coupled with stipulation made on the face of the airway bills and the role of airway bill that has been described makes it abundantly clear that the airway bill is a contract made between the shipper and the carrier and is a prima facie evidence of such contract, receipt of goods and acceptance of the conditions of contract'. My concern in the present case is about the receipt of goods by the carrier. The two airway bills in its stipulation which appear on their face admits that the goods described herein are accepted in apparent good order and condition. From these words, the only conclusion one can make is that firstly the goods have been accepted by the carrier for carriage and secondly the carrier has found the goods in apparent good order and condition. Both these stipulation, cannot be made by the carrier unless the goods are actually delivered to it for carriage. Further Article 6(1) of the Act specifically require the airway bill shall be made out by the consignor in three original parts and handed over with the goods. Article 6(2) inter alia provides that the third part shall be signed by the carrier and handed by him to the consignor after the goods have been accepted. Article 11(1) provides that the airway bill is prima facie evidence of the conclusion of contract of the receipt of goods and of the conditions of carriage. These provisions of the Act in clear terms lays down the rule of requiring the carrier to sign airway bill after the goods have been accepted as the airway bill constitutes prima facie evidence of the receipt of goods by the carrier. Once the carrier sings and issues the airway bill, there remains practically no room to disbelieve what the text and tenure of the airway bill describe, therefore, the provisions of law as mentioned above cast heavy duty on the carrier to sign and issue airway bill only when the goods mentioned therein are received by it. In the present context, it is not disputed that the cargo agent the plaintiffs by signing and issuing airway bill did bind the airline as its principal. The plaintiffs counsel has not pointed out any provision of law requiring issuing of dummy airway bill. The plaintiff witness in his cross‑examination has admitted that the two airway bills issued by it were not genuine airway bills. In the face of this admission, I am at loss to understand as to how grievance has arisen to the plaintiffs to file the suit for defamation. Obviously if the airway bills as admitted by the plaintiff witness were not genuine, its immediate consequence would be that they were fake. In the Chamber's 21st Century Dictionary revised addition, the term 'fake' has been given the meaning as follows:‑‑ "fake someone or something or an act that is not genuine, adj not genuine; false, counterfeit." It is established law that in the case for defamation, the burden to prove the fact that the act of the defendant was based on true facts lies upon the defendant. In the present case the plaintiffs evidence itself shows that the two airway bills signed and issued by them were not genuine which in other words will be fake. Therefore, the conclusion in respect of the letter dated 1‑2‑1988 exhibit 5/6 that the defendants did not cause any statement in it amounting to defamation. The counsel for the plaintiff has also referred to para.9 of the affidavit‑in -evidence of plaintiff witness and has contended that the allegations made therein were not specifically challenged by the defendants. Para 9 of the affidavit‑in- evidence of The plaintiffs is as follows:‑‑ "

9. In addition to the letter dated 1‑2‑1988, defendant No.1 through its officers, particularly defendant No.2; committed several acts which constitute defamation, libel and slander. Defendant No.2 who is author of the letter, made repeated telephone calls to the airline for several days. He levelled several false and malicious accusations of a most serious nature against us." Now the reading of the above para shows that there is not even a hint as to what acts of defamation, libel and slander was committed by the defendant No.1l through its officers. It, is alleged that the defendant No.2 made repeated telephone calls to the airline for several days and levelled false and 'malicious' accusations of most serious nature against the plaintiff but the substance of false and malicious accusations of most serious nature are not disclosed. In the absence of evidence containing substance and actual matters of libel slander and false accusations, in my view no case for defamation can be made. Defamation is caused through spoken words or through writing containing defamatory material. Para 9 of the affidavit‑in‑evidence does not contain the spoken words or writing which was slanderous or libelous. There was thus no need for the defendants to challenge the statement made in para 9 of the affidavit‑in‑evidence of the plaintiff witness. The law cited by the learned counsel, in view of the above need not be discussed as they are not directly on the point involved. Consequently the suit fails and is dismissed. By a short order dated 5‑12‑2003 the suit was dismissed and above are the reasons for it. H.B.T./C‑6/K Suit dismissed.