1984 PLP 1771 (CLC)

MUHAMMAD ZAHOORUL HAQ, J.‑This appeal is directed against the order dated 19‑11‑19eI passed by a learned single Judge of this Court on a review application by the respondent in Admiralty Suit No. 1019 of 1980 whereby the order dated 27‑9‑1981 passed in the same suit decreeing the claim of the appellant to the extent of equivalent of $ 50,000 was recalled. The appellant had placed an order for import of 500 Metric Tons of COLD ROLLED STEEL SHEETS @ $ 265 per Metric Ton and the goods have been shipped through respondent No. 1 which is owned by No. 3 as per Bill of Lading dated 30‑6‑1979. The ship arrived at Karachi on 25‑10‑1979 but the consignment was not found to have been discharged at the Karachi Port in accordance with the bill of lading dated 30‑6‑1979. The K. P. T. issued a short landing certificate to the appellant to the effect that manifest quantity of 100 Bundles of Skids bad not landed. The appellant filed Admiralty Suit No. 1019/80 on 16‑10‑1980 which was resisted by the respondent and they filed written statement challenging the position that the goods in question had not been discharged at Karachi. The following consent issues were framed :‑

(1) Whether the suit is not maintainable under the Admiralty Jurisdic tion ? (2) Whether the suit is not barred under section 69 of the Partnership Act, 1932 ? (3) What were the contents, quality, quantity, weight and value of the goods at the time of shipment ? (4) Was the suit consignment under bill of lading No. P‑101 or any part thereof short landed ex the vessel? (5) What is the value of the loss, if any, suffered by the plaintiff? (6) What is the maximum liability, if any, of the defendants? (7) What should the decree be? The case was posted for final disposal on 27‑9‑1981, and the following order was passed on that date :‑ "Naimuddin, J. Non‑delivery of the Cargo is admitted. The only ques tion raised is the limitation of liability. According to Mr. Mohomed Naim, the liability of the carriers is limited to $ 50,

000. Mr. Ali Amjad concedes to the above position. Accordingly, there shall be a decree for an amount in Pak. Rupees equivalent to U. S. $ 50,000 at the current exchange rate, with pro portionate costs." The respondent applied in review to the learned Judge and requested for recall of the said order on the ground that the defendants had taken a definite position in their written statement that the consignment in question had not been sufficiently and adequately marked and packed and the marks and numbers were obliterated and Skids became loose and that the carrier had discharged the entire goods into the custody of the Karachi Port Trust under "NIL" marks and large quantity of Skids were discharged in loose condition. They had denied the consignment was short landed and that the carriers and agents had requested the plaintiffs to take delivery of their goods which were lying at Plinth No. 23 Abot Yard West Wharf Karachi but the plaintiffs (Appellants) had neglected to take the delivery of the goods to serve their ulterior purpose. The appellant had stated that there had been an error apparent or this face of the record and that the concession and/or admission of fact or law made by their counsel was not binding on the defendants (respondents) and they were entitled to be heard on merits. After hearing the counsel of the parties the learned Single Judge observed that the office had posted the matter on 27‑9‑1y81 for final disposal and not for regular bearing. Therefore, the attention to the issues framed in the case was not paid, nor his attention was drawn to the same. The learned Single Judge further observed that although the Advocate for the defendants in reply to his question had stated that the defendants had not deli vered the goods but the plea in the written statement was that the carrier had discharged the entire goods into the Karachi Port under `NIL' marks in loose condition and that issue No. 4 had been framed in that respect. The learned Judge further observed that no statement was taken by him from the Advocate for the defendants with regard to the remaining issues as to whether he was giving up those issues or not. He, therefore, came to the conclusion that there was an error apparent on the face of the record and justice of the case required that the defendants should have an opportunity to defend the suit on all the issues. He, therefore, recalled his previous order of 27‑9‑1981 by his impugned order dated 19‑11‑1981. Mr. Ali Amjad has submitted that there was a definite admission by the counsel of the respondents that the goods in question had not been delivered and, therefore, the respondents were bound by that admission as their counsel Mr. Muhammad Naim was acting in the discharge of his duty to act for the respondents and to prosecute their case and therefore, his admission is binding upon the respondents on issue No.

4. Counsel has relied upon P L D 1982 S C 204 where a compromise signed by the Advocate alone was treated as the compromise signed by the party in view of the fact that the Vakalatnama included the power to compromise. Counsel also relied upon 1971 S C M R 634 (636) where it was held that an Advocate has implied authority to compromise unless the Vakalatnama provided otherwise. Reliance was also placed upon A I R 1932 P C 251 wherein a case of a decree by consent of parties the Privy Council had refused to entertain an appeal against the same. The last case is based on the practice of the Privy Council and is, therefore not relevant for our purpose. The Supreme Court cases relied upon by the learned counsel are also not relevant for our purpose in view of the fact that the decree in question before us was not a compromise decree. The concession made by the counsel of the respondents on 27‑9‑1981 was about non‑delivery of the Cargo. However, this concession appears to be patently contradictory to the stand taken by the respondents in paras. 4 and' 6 of the written statement of the respondents and we are pursuaded to agree with Mr. Liaquat Merchant, counsel for the respondent, that the concession' of the counsel of the respondent on 27‑9‑1981 was in respect of the non delivery of Cargo as manifested in the Bill of Lading and therefore, the respondent was not bound by that concession to the extent of their plea ins paras. 4 and 6 of the written statement that the goods had been delivered without `NIL' marks in loose condition and, therefore, there was no short landing of goods ultimately. Mr. Liaquat Merchant had relied upon P L D 1960 Lah. 1216 (1222) where a Single Judge of the West Pakistan High Court A had observed that where an Advocate of a party had taken a different line in presenting a case other than that taken by the client in plaint, as the founda tion in a case, then in such a situation the client was not bound by the Advocate's action. He had also relied upon P L D 1954 Lah. 325 (330‑331) where a learned Judge of the Lahore High Court had observed that the Courts are not debarred from relieving parties from the effects of their con cessions. In that case a suit for dissolution of marriage had been filed by a girl taking the position that there was no valid marriage. However, in revision her Counsel had made a concession about the factum of marriage and thus the point of repudiation of the marriage on the option of puberty alone was to be considered. But the Lahore High Court had held that there was some confusion of thought and learned counsel did not properly appreciate the legal position and did not realise the importance of the plea he was giving up. High Court further observed as under :‑-- "I cannot allow her case to be prejudiced on account of some mis conception on the part of her counsel. I have stated above that the admission made could not possibly imply that the plaintiff had herself consented to the marriage. The next observation of the High Court in that case is very relevant and important ;-- "It will, therefore, be not fair at all that a question like the present which relates to the marriage of the plaintiff should be decided against her without her having an appropriate opportunity to contest it. Her counsel did make a concession, and ordinarily if a plea is given up I would not allow that plea to be re‑agitated. Courts however, are not debarred from relieving parties of the effects of their concessions." We are quite clear in our mind that the learned Single Judge was very much right when he reviewed the order of 27‑9‑981 and relieved the respondents of the concessions made by their counsel, in view of the definite plea taken in the written statement by the respondents which was in conflict with the concession made by the counsel. The order passed by the learned Single Judge on 19‑11‑1981 was in the best interests of justice and provided an appropriate opportunity to the respondent to contest the matter of short-landing of the goods and enable them to prove their pleas if they can and hence it does not require any interference. It is a case of discharge of the goods in a loose form without any marks which the respondents wanted to prove and they should have the opportunity to prove their plea. We would, therefore, dismiss this appeal but in view of the difficulty involved we would not make any order as to costs. M. B. A. Appeal dismissed.