1992 PLP 1803 (MLD)

NASIR ASLAM ZAHID, J.‑‑‑This High Court Appeal has been filed by the appellants/plaintiffs, Ghulam Rasool Khan and Abdul Razzak Khan against the order, dated 16‑9‑1991 passed by the learned Single Judge, allowing C.M.A. No.4003 of 1990 filed by intervenor Abu Baker (later impleaded as defendant No.3) in Suit No.438/90 filed by the appellants and the order, dated 6‑11‑1990 dismissing C.MA. No.2524/91 (review application) filed by the appellants.

2. Initially, the appellants had filed Suit No.438/90 against two defendants, namely, Motor, Fishing Boat called Miranpir" (later on named as "AI‑Saeed") and the Collector of Customs Karachi. Appellants' case is that they had purchased the aforesaid fishing boat in 1987 from Fishermen's Cooperative Society, Limited, Karachi, for a total consideration of Rs.4,91,500 and the particulars of the said boat given in the plaint are as follows:‑ . (a) Branded and painted No. 10288‑B. (b) Engine No.62284 of one unit of Kabuta of 150 horse powers. (c) Capacity: 26.75 tons. (d) Length: 18.18 meters. (e) Breadth: 5.06 meters. (f) Depth: 2.78 meters. According to the plaintiffs/appellants, the boat was used for fishing and some times the boat had to go even on the high seas. for fishing purposes. However, sometime in March, 1989, the appellants came to know that their boat had been apprehended by the authorities of the State of Muscat and later on the Nakhuda of the boat and one employee of the boat were sent back to Pakistan. Thereafter, the boat was auctioned by the Muscat Port Authorities. It appears that one Aziz bin Muhammad bin Gharib Awafi purchased the boat in the auction by the Muscat authorities, and, respondent No.3. Abu Bakar son of Umar, in turn purchased the boat from the said Aziz bin Muhammad. Later on, the appellants came to know that the boat had come to Karachi and had been apprehended by the Customs authorities. As there was apprehension of the boat being sold by the Customs authorities, the appellant filed the above suit against the Boat and the Collector of Customs Karachi for declaration that they were the owners of the boat and for its possession and also sought a permanent injunction against the two defendants that the boat may. not be taken out of Karachi Sea Port.

3. When respondent No.3 Abu Bakar came to know of the filing of the suit, he filed an application under Order 1, rule 10, C.P.C. claiming that he had purchased the boat from Aziz bin Muhammad, who had earlier purchased the same in auction by the Muscat authorities who had confiscated the said boat. C.M.A. No.4003/90 was filed by the intervenor/respondent No.3 praying that the possession of the boat be handed over to him. The application for interim relief filed by the appellants, the application under Order I, rule 10, C.P.C. filed by intervenor Abu Bakar and C.MA. No.4003/90 filed by Abu Bakar for possession of the boat were disposed of by order, dated 6‑11‑1990 of the learned Single Judge as follows:‑ "Since the plaintiff has admittedly lost possession of the motor‑boat when it was apprehended by the Port Authorities of Muscat, it was the plaintiffs' duty to get the boat released from Muscat Authorities. The fact that it is in possession of a third person, who has also produced documentary evidence to show that he has lawfully obtained it from Muscat Authorities in itself shows the weakness of the plaintiffs' case. It is, therefore, quite clear that prima facie the plaintiffs are not entitled to the possession of this motor‑boat, whereas Abu Bakar is entitled to its possession. I, therefore, direct that the motor‑boat be handed over to Intervenor Abu Bakar, but in order to safeguard the interest of the plaintiffs, I direct that Intervenor Abu Bakar shall furnish security in the shape of Bank Guarantee for a sum of Rs.6,00,000 (Rupees six lacs), that he shall produce this motor‑boat whenever called by the Court to do so. The boat be handed over by the Nazir to intervenor Abu Bakar on his obtaining `No‑Objection Certificate' from the Customs Authorities of Pakistan. C.M.As. No.2948/90, 4003/90 and 3447/90 are disposed of accordingly. Intervenor Abu Bakar is ordered to be joined as defendant."

4. Thereafter, an application for review of the order directing the handing over of the boat to Abu Bakar was filed by the plaintiffs, being C.M.A. No. 2524/91. In support of this application, the submission on behalf of the plaintiffs before the Single Judge was that the boat in question is not the boat claimed by Abu Bakar and the documents relied upon by Abu Bakar confirm this fact. The case of the plaintiffs was that there were discrepancies in the engine number, tonnage and size of the boat and as such the earlier order for delivery of the boat to Abu Bakar was liable to be reviewed. This application was also dismissed by the learned Single Judge by his order, dated 16‑9‑1991. The orders passed by the learned Single Judge have been challenged in this High Court Appeal. We have heard at length the arguments of Mr. Khalil‑ur- Rehman, learned counsel for the appellants, and Mr. Abdul Aziz Shaikh, learned counsel for the respondent No.3. Respondent No.1 is the boat and respondent No.2 is the Collector of Customs Karachi on whose behalf no one has appeared.

5. After hearing the learned counsel and going through the pleadings and documents relied upon by the parties, we are of the view that no interference is called for. At the time the earlier order, dated 26‑11‑1990 was passed, apparently there was no dispute regarding the identity of the boat. Apparently the boat of the plaintiffs which had been seized by the Muscat authorities had been sold in auction to Aziz bin Muhammad from whom respondent No.3 Abu Bakar had purchased the same. Engine number and its horse power was the same and the learned Judge had also taken care of the interest of the appellants inasmuch as the respondent No.3 was directed to furnish bank guarantee in the sum of Rs.6,00,000 guaranteeing the production of the boat whenever required by the Court. No doubt there arc some discrepancies in the length, breadth, and tonnage in the specifications given by the respondent No.3 in the documents in support of his application for being impleaded as a defendant and the specifications of the boat available with the Customs Authorities, but, as observed, at this stage it appears that the boat is the same which belonged to the appellants and later on confiscated by the Muscat' authorities and then sold in auction to a foreigner from whom respondent No.3l, purchased the same. We may again observe that the interest of the appellants has been fully looked after inasmuch as respondent No.3 has been directed to furnish a bank guarantee of Rs.600,

000. This amount is sufficient to protect the interest of the appellants as according to them, they had purchased the boat in 1987 for the sum of Rs.495,500 and in the plaint filed by them they have valued the suit for the purposes of court‑fee at Rs.5,00,000 "which is the cost price of the fishing boat" in question.

6. Finding no merit, this appeal is dismissed, but with no order as to cost. AA./G‑292/K Appeal dismissed.