P L D 1991 Karachi 365 (PLP)

I intend to dispose of the above seven applications by this common order as the suits and these applications involve common questions of fact and law and the cases are identical. Briefly the facts are that the plaintiffs are a public limited company dealing in marketing of petroleums product and other business while the defendant No.l had entered into a contract with the plaintiffs whereby they placed a running rate contract on plaintiffs for the supply of furnace oil at their Bin Qasim Thermal Power Station, Karachi. The other defendants are Cartage Contractors through whose tanks lorries the plaintiffs supplied the furnace oil from their Kemari Terminal to the defendant No.l at their Bin Qasim Power Station. It is simply the case of the plaintiffs that after loading the furnace oil in tanks lorries of Cartage Contractors the plaintiff's responsbility is over and they are entitled to receive the payment from the defendant No.l while the losses, shortage or any injury caused to the products would be the responsibility and liability of the Cartage Contractors. It is also the case of the plaintiffs that the defendant No.l started making short payment to the plaintiffs for the reason that according to defendant No.l, they had received short deliveries of furnace oil as against the quantity for which the order was placed. The plaintiffs, therefore, filed this suit for recovery of money as claimed in each suit. The defendants have not yet filed their written statements but the learned counsel for some of the Cartage Contractors has moved this application under Order 1, Rule 10 (2) C.P.C., read with Order VII rule 11, C.P.C. and Order XII, Rule 6, C.P.C. The plaintiffs have opposed this application. I have heard the learned counsel for the parties. Mr. Ahsan Zaheer Rizvi, learned counsel for the applicants has submitted that it stands admitted in the plaint that the Cartage Contractors have delivered the quantity ordered for by the defendant No.l and, therefore, the Cartage Contractors would not be responsible or liable in the suit for short payment by the defendant No.l. He has further submitted that according to the plaint, no cause of action has accrued to the plaintiffs as against the Cartage Contractors; and that, therefore, the suit would be barred against them. He has referred to the contents of paragraphs Nos. 10,15, 17, 19 and 24 of the plaint. He has also referred to number of cases in support of his above contentions. Mr. Muhammad Anis, learned counsel for the plaintiffs and Mr. Rustam J.E. Kaikabad, learned counsel for defendant No.l have vehemently opposed this application and have submitted that the contents of paragraphs Nos.6, 13, 18 and 20 of the plaint very much show that the cause of action does accrue against the Cartage Contractors also. They have further submitted that after filling of the tanks lorries by the plaintiffs at their Kemari Terminal it is the responsibility of the Cartage Contractors to deliver the same to the defendant No.l at their Bin Qasim Power Station and if any shortage is caused or any damage is caused to the consignment then the Cartage Contractors would be very much responsible to make good the loss and thus they are the necessary party to the suit. In reply Mr. Ahsan Zaheer Rizvi, learned counsel for the applicants has submitted that there is no privity of contract between the plaintiffs and the Cartage Contractors and, therefore, they cannot sue them but these Cartage Contractors can only be sued after it is determined in the present suit that there was any short delivery. I have considered the submissions of the learned counsel for the parties. There is no cavil about the legal position that in case the plaint does not disclose any cause of action against the defendants, the Court should reject the plaint straightaway. The objects of this provision of Order VII, rule 11, C.P.C. are two fold, firstly, a still born suit ought to be buried properly at its very inception so A that no further time of Court or parties is unnecessarily wasted; and secondly, that it would give a chance to the plaintiff to retrace his steps and to seek a proper legal remedy if so available in law. Reference can be made to the Division Bench judgment of Dacca High Court in the case of Burmah Eastern Limited v. Burmah Eastern Employees' Union P L D 1967 Dacca

190. The provisions of Order I, rule 10(2), C.P.C. and Order XII rule 6, C.P.C. are also not disputed but the question involved in the present suit is that whether the plain reading of the plaint itself and its accompaniments would not show any cause of action accruing against the defendants nor it would show that any relief can be calimed against them or that the plaint itself shows admission which would go in favour of the defendants. The phrase `cause of action' has been defined to mean "a bundle of e facts giving rise to a right which the plaintiff will have to prove if traversed by the, defendant." It may also be relevant here to mention the provisions of Order 1, Rule 3, C.P.C. and Order 11, Rule 2, C.P.C. which read as under: "

3. Who may be joined as defendants.‑‑All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise.

2. Suit to include the whole claim.‑‑(1) Every suit shall include the whole . of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.‑‑Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs: ‑A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so Explanation.‑‑For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but once cause of action." The above provisions do provide that those persons can be joined as defendants in one suit against whom any right to relief in respect of or arising out of the same act or transaction or series thereof is shown to exist while the latter provisions provide that every suit shall include whole of the claim to which the II plaintiff is entitled in respect of cause of action and also that if he relinquishes or omits to sue for one of several reliefs then he would not be entitled to claim the same through a subsequent suit. Now in the light of above provisions of law, it has to be seen if the plaint shows the involvement of the present applicants in the acts, transactions or series of acts and transactions in the suit constituting the cause of action. It would be pertinent to reproduce the paragraph No.6 of the plaint, which reads as under: "

6. That Furnace Oil was used to be delivered to KESC Limited through tank lorries from plaintiffs Kemari Terminal to KESC, Bin Oasim Power Station and the Cartage Contractors used to transport tank lorries as private carriers through their lorry drivers/contractor's representative and once the tank lorry was loaded and left the plaintiffs terminal (after filling the product) with the Invoices showing the invoices number and the quantity of furnace oil, the price, code number of Cartage Contractor and other particulars, mentioned therein, the plaintiffs responsibility used to cease and liability to transport and deliver the petroleum products i.e. the furnace oil, lay purely and exclusively with the respective Cartage Contractors and for all losses shortages or any injury caused to the products the Cartage Contractors were exclusively responsible and liable as per Cartage Contract between the plaintiffs and Cartage Contractors. Defendants Nos.2 to 25:" (Underlining is done by me). Further in paragrapgh No.8 of the plaint, it is claimed by the plaintiffs that suit is being filed for the amount withheld by defendant No.l on the allegation of short supplies made. In paragraph No.18 of the plaint, it is asserted by the plaintiffs that the laibility to transport and to deliver full intended quantity to the customers purely lay with the respective Cartage Contractors only. 1n paragraph No.20 of the plaint, it is asserted by the plaintiffs that the defendant No.l has deducted the price of furnace oil alleged to be short delivered by the lorry drivers of the Cartage Contractors. It is further asserted that the Cartage Contractors would be responsible and liable for the amount relating to the Invoices concerned if the forgery or non‑delivery or short‑delivery of consignment is proved while in paragraph No.22 of the plaint, it is further claimed that the plaintiffs had informed the Cartage Contractors that the defendant No.l disowned to have received the deliveries entrusted to the Cartage Contractors concerned. In these circumstances and from the reading of the above mentioned contents of the plaint, it aPPears that the Cartage Contractors are very much concerned with the acts and series of the acts as shown in the plaint which too constitute the cause of action. It may also be observed that the Cartage Contractors would be very much liable in case such short delivery or non‑delivery of furnace oil to defendant No.l d is proved as they had the privity of contract with the plaintiffs for the supply of furnace oil. No final and conclusive adjudication can be made in the suit in absence of the said Cartage Contractors who are not only proper but necessary party to the present suit and thus their names cannot be deleted from the plaint. In view of above discussion, I dismiss these applications with costs. A.A./P‑201/K Applications dismissed,