P L D 1965 (W (PLP)

Hasan Mahmood for Respondent. No.

3. Dates of hearing: 18th and 19th February 1965. This is a revision application under section 25 of the Provincial Small Causes Court Act and is directed against the judgment dated 31st January 1963, passed by Mr. Moulla bux G. Lighari Judge, Small Causes Court, Karachi, in Suit No. 349/62 whereby he dismissed the plaintiffs suit with costs. There were two plaintiffs, (1) the firm of Malik Hiranand & Sons who were the consignees and (2) the insurance company, which had paid the firm for the loss on non‑delivery of the goods. There were three defendants. The first defendant was the shipping company, the second their local agents Messrs Mackinnon Mackenzie & Co., and the third the trustees of the Port of Karachi.

2. The plaintiffs had imported six cartons of Latex. Rubber Prophylactics which were shipped on board the `Steel Worker' belonging to the defendant No.

1. The steamer arrived at Karachi and according to the defendants 1 and 2 all the six cartons were delivered to the Karachi Port Trust on the 22nd and 23rd of April 1961. The Karachi Port Trust, however, on 19th May 1961, issued a short landing certificate to the effect that only four cartons had been delivered to them and two cartons had been short‑landed. , This short landing certificate is Exh.

49. This was followed by a prolonged correspondence between the parties by which the plaintiffs continued to demand the goods from Messrs Mackinnon Mackenzie and they in turn kept on saying that all the 6 cartons had been delivered to the Karachi Port Trust. The Karachi Port Trust in its turn maintained that there had been a short landing of two cartons. The plaintiffs then brought this suit on 16th March 1962, for the sum of Rs. 1121,92 as the value of the two cartons which had not been delivered to them. The learned Judge, Small Causes Court, Karachi relying upon the two truck notes, Exhs. 14 and 14/A; issued by the Karachi Port Trust from which it appeared that all the six cartons had been delivered by the ship to the Karachi Port Trust, held that the fault was of the K. ‑P. T. and by mistake they seemed to have delivered the two cartons to another consignee who had also imported similar goods. The result of this finding was that the defendants 1 and 2, namely the ship owners and their agents Messrs Mackinnon & Mackenzie were absolved in respect of this short delivery. However, the claim of the plaintiffs was also dismissed against the Karachi Port Trust upon the ground that it was barred by time. The learned Judge, Small Causes Court held that notice as required by bye‑law 46 of the Karachi Port Trust was not given by the consignee and further, the suit not having been filed within 6 months of the accrual of the cause‑ of action as required by, section 87 of the Karachi Port Trust Act, it was barred by time. Upon these findings, the suit against all the defendants was dismissed with costs.

3. Mr. Naim, the learned Advocate appearing for the plaintiff applicants, has not contested the finding of the lower Court that all the 6 cartons had been delivered to the Karachi Port Trust. He has, however, contended that the suit was within time and the finding of the lower Court in this regard was wrong. He has accordingly claimed a decree only against the Karachi Port Trust. The contention of the learned counsel was that it was not until the 2nd of January 1962, that the Karachi Port Trust ‑indirectly admitted that it had issued the two truck notes as per Exh. 33 and it was only then that it could be said that the plaintiffs became in a position to bring their action to a successful result against the Karachi Port Trust. That being so, it was urged that the cause of action really arose on 2nd January 1962, and, therefore, the suit was clearly within time. Reliance was placed upon a judgment of Wahiduddin Ahmad J. in the case of Haji Adam v. Levant Line (P L D 1959 Kar. 364). In that case, the suit was, in the first instance, brought against the ship owners and their agents but in the course of the evidence an officer of the Karachi Port Trust admitted that they had received the goods. Upon this an application for the amendment of the plaint was made and the Karachi ' Port Trust was impleaded as defendant No. 3 in the suit. This was long after the landing of the goods and the period of six months limitation had passed by several years. The learned Judge, however, found that it was not until the officer of the Karachi Port Trust admitted in his evidence that the goods had, in fact, been received by them that the cause of action arose. Relying upon a judgment of the Calcutta High Court A I R 1942 Cal. 600 it was held that in such cases the test laid down is to find out when the plaintiff could first have maintained his action to a successful result. Accordingly it was held that the claim against the Karachi Port Trust was within time.

4. In the alternative it was argued by Mr. Naeem that upon the finding of the lower Court itself that the plaintiffs first came to know of the short landing on 5‑9‑61, the suit which was instituted on 16th March 1962, was still within time because the period of one month's notice which the plaintiffs were required to give under section 87 of the Karachi Port Trust Act the suit would still be within time.

5. With regard to the first point that it was only on. the 2nd of January 1962, that the plaintiffs came into possession of the evidence upon which they could successfully bring an action against the Karachi Port Trust, it is clear that this ground is factually ill‑founded. The date of the accrual of the cause of action against the first two defendants is stated in the plaint to be 24‑4‑61, when the goods had been landed and against the Port Trust on 18‑10‑61, upon the ground that it was for the first time on this day that the defendant No. 2 alleged that the goods had been fully discharged into the custody of the defendant No. 3, There is no mention of the 2nd of January 1962, which at the hearing before me was urged to be the date of the accrual of the cause of action against the Karachi Port Trust. I will first consider whether the cause of action against the Karachi Port Trust arose on 18‑10‑61, as alleged in the plaint. This date is based upon a letter of that day from the defendant No. 2 to the consignee in which the former has said that since they held a receipt for the discharge of the full consignment they were not liable and the claim may be preferred against the Karachi Port Trust. A perusal of the correspondence, however, makes it clear that this stand had been taken by the defendant No. 2 from the very beginning and not for the first time on the 18th October 1961, As far back as 19th of July as per Exh. 16/6 the defendant No. 2 had categorically told the consignee that tree goods had been fully discharged at the Karachi Port Trust and they should prefer a claim against that body. Not only this, they had even given the numbers of the two truck notes whereby the six cartons were said to have been delivered to the Karachi Port Trust. Therefore, if the information from the agents, defendant No. 2, could be said to be the basis of the cause of action against the defendant No. 3, then that information had been furnished to the plaintiffs on 19th July 1961, and if that date is taken to be one upon which the cause of action arose then the suit is admittedly barred by time. Section 87 of the Karachi Port Trust Act reads:‑‑‑ "No suit shall be commenced against any person for any thing done or purporting to have been done, in pursuance of this Act, without giving to such person one month's previous notice in writing, of the intended suit and of the cause thereof, nor after six months from the accrual of the cause of such suit." In the present case, the suit was instituted on 16th March 1962, and excluding the period of notice of one month the suit would be found to have been instituted more than 6 months after the letter Exh. 16/6, dated 19th July 1961, when as shown above the plaintiffs had been given full information as regards the delivery of the goods to the Karachi Port Trust.

6. With regard to the second argument that the cause of action arose on 2nd January 1962, upon the basis of Exh. 33, it may be noted that this document contained no admission that six cartons of the plaintiff No. 1 had been delivered by the ship to the Karachi Port Trust. In fact, by this letter they have categorically stated that the short landing of two cartons, as stated by them, was correct. They have merely explained the mistake under which the truck notes were issued It cannot therefore, be held that this letter, Exh. 33, constituted an admission on the part of the Karachi Port Trust that they had received the goods and, therefore, this would form the basis of the cause of action upon the authority contained in the judgment referred to above. In fact, this had never been the case of the plaintiffs in' the Court below that the Karachi Port Trust at any time admitted the receipt of these cartons or that it was from Exh. 33 for the first time that the plaintiff became in a position to maintain an action successfully against the Karachi Port Trust. Long before this date the plaintiff No.1 had been given unmistakable evidence by the defendant No. 2 with reference to the two trucks notes as has already been shown above.

7. As to the alternative argument based upon the statement in the judgment that the plaintiffs came to know for the first time on 5‑9‑61, about the short landing and upon this basis the suit would be within time when the period of notice is excluded, it is sufficient to say that this statement of fact as contained in the judgment is clearly wrong and shows carelessness on the part of the Court below. 5‑9‑1961, is the date of Exh.

21. But this is not the first short landing certificate. In fact, every time that the plaintiffs wrote to the Karachi Port Trust or when the defendant No. 2 did so they merely made an endorsement upon the form of the short landing certificate and sent it in reply saying that the two cartons had been short landed. The first short landing certificate was issued as per Exh. 49 on 19th May 1961, and the plaintiff No. 1 was fully aware of it, because we find from his letter Exh. 16/2 dated 18‑5‑61, in which he has written to the defendant No. 2 telling them that no such cartons (the two undelivered cartons) were lying in the K. P. T. shed and that the K. P. T. authorities have informed them that these cartons had been short landed and they were going to confirm it within a day or two in writing. This confirmation came on the following day, that is 19th May 1961, as per Exh.

49. It cannot, therefore, be said that the plaintiffs came to know about the short landing for the first time on 5‑9‑

61. Therefore, on neither of the two contentions the plaintiffs' suit can be held to be within time and I hold that the suit was barred by section 87 of the Karachi Port Trust Act. I would, however, like to make an observation that the finding of the learned Judge, Small Causes Court that notice required by bye‑law 46 was not given, is clearly‑ wrong because a letter was written by the clearing agent as per Exh. 16 to the Karachi Port Trust and that letter would clearly constitute a notice which would put the Karachi Port Trust upon inquiry as regards the missing goods. It was urged that this notice had to be to the Board of Trustees but there is no substance in that argument because the Board acts through its agents and the letter, Exh. 16, to the agent was sufficient notice within the meaning of the bye‑law.

8. In view of my findings this revision application is dismissed. In the circumstances of the case I direct that the costs of this revision application as well as of the suit which has been dismissed upon a technical ground of limitation shall be borne throughout by the parties as incurred. The order of costs made by the Court below is accordingly modified. K.B.A. Application dismissed.