P L D 1957 (W (PLP)

LARI, J.

This is a suit for recovery of Rs. 5,862-15-0 from the defendants for non-delivery of goods. It appears that the plaintiff was employed as a Havaldar clerk, and after partition, having opted for Pakistan, was transferred to Thal in N.-W. F. P. and later on to Nowshera. He got the articles mentioned in the Schedule "A" despatched from Delhi to Nowshera for delivery to him, by means of Railway Receipt No. 85, dated the 25th February 1948 through the High Commissioner for Pakistan in India. The plaintiff was subsequently transferred to Karachi, and made an application through his officer for re-despatch of the goods to Karachi. This request was acceded to by the General Manager (Commercial). North-Western Railway, and by means of a letter dated the 8th May 1948. The General Manager directed that the goods be re-booked from Nowshera to Karachi Cantt. The goods, however, were not received at Karachi Cantt. On enquiry by the plaintiff a letter dated the 23rd May 1949 was received from the Railway concerned. It was to the effect that the enquiries had not yet been completed and a definite reply will be sent on completion of the same. Subsequently by means of letter dated the 6th October 1949, the Railway authorities offered Rs. 1,500 in full and final settlement of the claim of the plaintiff. The amount was not acceptable to the plaintiff. 'He served a notice on the 20th December 1949 and ultimately filed this suit on the 10th March 1950. The defendants contested this suit. The main grounds were that the Court had no jurisdiction; the suit was barred by limitation; that the goods had been carried to Nowshera ; that the plaintiff had been called upon to remove the same but had failed to take delivery thereof within the time allowed for clearing the goods. The following issues were framed :- (1) Whether the Court has jurisdiction to try the suit ? (2) Whether the suit is in time ? (3) With which railway was the contract for the carriage made and for what articles ? What was the value of the said articles ? (4) What articles were made over to the North-Western Railway Administration ? (5) Whether the defendants are not liable for the alleged claim of the plaintiff as alleged in paragraphs 6 and 11 of the written statement ? (6) To what amount, if any, is the plaintiff entitled ? The plaintiff examined two witnesses, namely, the plaintiff himself (P. W. 1) and Muhammad Rauf Ali (P. W. 2) besides tendering into evidence certain documents, particularly, the railway receipt Exh. 5/1, a list of articles Exh. 7, a letter from the General Manager (Commercial), dated the 8th May 1948, Exh. 17 and another letter dated the 6th October 1949, Exh. 5/2, offering Rs. 1,500 to the plaintiff in full settlement of his claim. Muhammad Hussain (P. W. 1) in his statement supported the allegations made in the plaint. He added that at the time of booking the goods he had made a complete list of the articles, a copy of which he submitted to the Railway Authorities when he was asked to do. He valued the goods despatched at Rs. 5,

757. In cross-examination, however, he admitted that he did not know the real price of the goods and had given the price by estimation. He further admitted that he had not verified the prices shown against each article from the market. He denied that he received any intima tion from Nowshera to the effect that the goods were lying there ;, nor was he told to that effect by any other person, Muhammad Raufali is the man who had booked the packages from Delhi but they had been booked by him in the condition in which they had been placed at his house by the plaintiff and his wife. The defendants did not tender any documents in evidence, although they alleged that they had sent an intimation to the plaintiff about the arrival of the goods in Nowshera and called upon him to take delivery thereof. The defendants however examined two witnesses. The first witness was Syed Iqbal Hussain. He was posted at Rawalpindi as Assistant Transport Officer in 1949 and he was deputed to Peshawar in April of the same year to auction unclaimed goods. Among the consignments which he sold by auction, there were some packages on which the name of Muhammad Hussain appeared. He did not produce any documents relat ing to the auction. In cross-examination the witness had to admit that he could not give the number of packages that were dealt with by him on the day of the auction. He could not remember who had auctioned the goods; nor could he recollect if any public notice in respect of the auction had been issued. He could not say if any notice had been published in papers or any hand-bills issued. He further could not say whether any publicity by means of drums had taken place or not. He could not give the date of the auction, nor the name of any bidder. He could not indicate the order in which the goods were auctioned nor could he say what price each consignment fetched. He was not able to give details of the articles found in each of the packages belonging to the plaintiff. He could not however recollect that some of the articles mentioned in the list, Exh. 7 were found in those packages, but he was not sure about others. Zamir-ul-Hasan (D. W. 2) is the next witness on behalf of the defendants. He deposed that the goods under receipt Exh. 5/1 had been booked by passenger train, but somehow they arrived in the goods shed. As they did not relate to the goods department, these packages remained unconnected in the goods shed. By the word "unconnected" he meant that there were no goods marks on the packages and there was no trace of the consignee. Tlie witness stated that these packages remained lying in the goods shed till he was trans ferred in December 1948. He admitted that he did not send any notice to anybody regarding the goods till he was transferred. Muhammad Din, (D. W. 3) deposed that he had sent a notice to the consignee of the receipt Exh, 5/1 for the removal of the goods. He could not say on what date he had sent the notice, nor did he know whether the acknowledgment receipt was on the file or not. He could not depose as to what address the notice had been sent by him. The evidence led on behalf of the defendants clearly shows that the goods were received at Nowshera, that they were misplaced in the goods shed and no notice was taken thereof, and that nobody was informed as the presence of these goods in the goods shed. The defendants have totally failed to prove that any intimation was sent to the plaintiff about the receipt of the goods. If any registered notice had been sent, it could easily have been proved by documents on the file of the Railway or by summoning necessary docu ments from the post office. Nothing of that sort was done. As to auction it has not been pleaded in the written statement and no documents relating to that filed in the case. Decision with reasons therefor Issue No. 1.-Whether the Court has jurisdiction to try the suit ? It is clear from the letter of the General Manager (Commercial), Lahore, 'dated the 8th May 1948, Exh. 17, that the North-Western Railway accepted the request of the plaintiff to rebook the goods from Nowshera to Karachi. In view of this the goods had to be delivered at Karachi and, necessarily the cause of action, namely, non-delivery of the goods, took place in Karachi. It is not necessary to decide whether apart from this cause of action there was any other basis for the suit being filed within the jurisdiction of this Court. This Court obviously has jurisdiction to try the suit. Issue No, 2.-Whether the suit is in time ? It is clear from the letter addressed by the defendants, Exh. 12, that till the 23rd May 1949 the defendants were trying to find out the whereabouts of the goods. In other words, delivery was still possible. The suit was filed, as noted earlier, on the 10th March 1950, that is to say, within a year of this letter. The suit is within time. Issue No. 3.-With which railway was the contract for the carriage made and for what articles ? What was the value of the said articles ? Issue No. 4.-What articles were made over to the North-Western Railway Administration? Both these issues may be taken together. The goods were consigned at Delhi through the Pakistan High Commis sioner for Nowshera. It is the admitted case of the defen dants that the goods safely arrived in Nowshera. It is proved by documentary evidence that the North-Western Railway, Pakistan, accepted the responsibility of rebooking the goods from Nowshera to Karachi. It is obvious, therefore, that the B articles in question were made over to the North-Western Railway Administration. As to value thereof, there is the solitary testimony of Muhammad Hussain. He has filed a complete list of the articles booked by him. Vide Exh.

7. He has valued the price of these articles at Rs. 5,

757. The defen dants counsel has made a statement that the articles mentioned in Exh. 7 would value about Rs. 3,

000. It is not possible to accept the. statement of Muhammad Hussain in its entirety. He himself admitted that some of the goods were used ones and that he did not know the exact price of the articles. It is, however, admitted that the articles would fetch Rs. 3,

000. I, therefore, value the articles mentioned in Exh, 7 at Rs. 3,000, Issue No. 5.-Whether the defendants are not liable for the alleged claim of the plaintiff as alleged in paras. 6 and 11 of the written statement ? Paragraph 6 of the written statement is to the effect that the articles handed over to the defendants had been carried to Nowshera and the plaintiff had been called upon to remove them, and as the plaintiff had failed to take delivery the defendants were not liable for loss thereof. This allega tion has not been proved. There is no document to show that any notice was served on the plaintiff. The plaintiff denies this. The evidence of Zamir-ul-Hasan on the other hand negatives this plea. His case was that the goods arrived in Nowshera and somehow found their way into the goods shed, and remained there uncared for till December 1948. The allegation in para. 11 of the written statement was that the plaintiff's claim was barred by rule 28 of the Goods Tariff. Nothing has been addressed to me on this point. I hold that the defendants are liable for the claim to the extent of Rs. 3,

000. Issue No. 6.-To what amount, if any, is the plaintiff entitled ? The plaintiff is entitled to Rs. 3,000 as compensation for the goods lost. The plaintiff is entitled to proportionate costs. The defendants have been negligent, and must bear their own costs. The result is that the suit succeeds for Rs. 3,000 with proportionate costs. A. H. Suit partially decreed.